From Dublin to Athens: A Plea for a Radical Rethinking of the Allocation of Jurisdiction in Asylum Procedures 

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FULL STUDY PUBLISHED HERE
by Marcello Di Filippo (1)
ABSTRACT (Policy Brief – January 2016) (2)
The so called refugee crisis of 2015 had several effects, among which the definitive demonstration of the unsustainability of the Dublin system and the need of a radical change in the modalities of allocation of the competence for the exam of asylum claims in the EU. 
The same credibility of the EU is at stake, as well as the capacities of national governments to manage the relevant flows reaching the Schengen area. 
This Policy Brief provides sound arguments both for supporting the demand for a new legal framework, and for the determination of new criteria which combines fairness, realism, solidarity, cooperation. 
A quota approach would be combined with a “genuine link” approach, thus trying to find a proper balance between the States’ interests and the point of view (and related behaviors) of asylum seekers, and also between the objections of human rights defenders and the concerns of European public opinion. 
The need to turn the page with the Dublin age warmly suggests to choose, for the new proposed regulation, a nick name which evokes the features of the current historical (and dramatic) passage of European integration and our deep sense of belonging to a place where much part of our way of thinking and of being a society is rooted: Athens. 
Having regard to the lessons learnt from decades of regulation of the determination of jurisdiction in civil, commercial and criminal matters, a first step to take is the adoption of a new conception for the role of the asylum seeker, who should be allocated to the State with which he/she holds a substantial link: the configuration of the relevant connecting factors (family relations; economic or social ties) should pay due regard to the empirical dimension of the phenomenon and to the need to avoid unnecessary sufferance and waste of public funds and time. 
If the asylum seeker has genuine links with more States, a certain relevance to his/her free choice should be awarded. 
Lacking any connection with a given country, the State with the lowest performance in fulfilling its reference quota should be the competent one. In the same time, an already overburdened country should be afforded the possibility to refuse responsibility, provided that some basic family ties are safeguarded. In such cases, a less connected country should be responsible, or the one less engaged in hosting asylum seekers and refugees, or as extrema ratio the country of first entrance or where the application is lodged. Whether an asylum seeker is allocated to a country where he/she does not have any substantial link and his/her asylum claim receives a positive outcome, the possibility of accepting a genuine job offer in another Member State should be admitted. This way, a partial freedom of circulation for work purposes could be recognized, but its exercise would relieve the first Member State by protection duties. As an accompanying measure, a system of financial incentives/disincentives for Member States should be conceived. 
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 1 Associate Professor of International Law (University of Pisa; marcello.difilippo@unipi.it), Member of the International Institute of Humanitarian Law (http://www.iihl.org), Coordinator of the Observatory on European Migration Law (http://immigrazione.jus.unipi.it).
The author is grateful to G. Beruto, S. Baldini and to the whole IIHL staff for their precious support, and to A. Baldaccini, C. Hein, S. Marinai, and E. Papastavridis for their valuable comments on an earlier version of this paper.
2 Policy Brief elaborated with the support of the Italian Ministry for Foreign Affairs and the International Cooperation (contribution awarded under Article 2 Law No. 948/82).

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The EU, Turkey and the Refugee Crisis: What could possibly go wrong?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 5 February 2016)

by Steve Peersand Emanuela Roman, **

The key non-EU country in the EU’s ongoing refugee crisis is Turkey: the host ofover 2 million Syrian refugees, and a transit country for many asylum-seekers. An increasing number of them have been making the journey from Turkey to the Greek islands, leading to a significant rise in the number of would-be asylum-seekers in the EU over the last year. Tragically, many have died making this crossing.

To address these issues, the EU and Turkey reached a deal in November with a number of different elements. The main aim was to improve the position of Syrian refugees in Turkey (reducing the ‘push’ factor which results in more people planning to leave), and to return to Turkey those who did not need international protection. But, according to the latest Frontex statistics, most of the people arriving from Turkey do need international protection: about 90% of those arriving in Greece in December were from Syria, Iraq and Afghanistan, countries with high recognition rates for asylum claims.

It follows that returning to Turkey only those who don’t need international protection would only make a small dent in the numbers coming to the EU. Many politicians, in reaction to a portion of public opinion, would like to reduce those numbers far more. So last week, a further plan emerged: to return to Turkey those who do need international protection, on the grounds that they already had such protection in Turkey – or if not, they should seek it there. This would entail designating Turkey as a ‘safe third country’. The plan would entail a nearly immediate return to Turkey of any would-be asylum-seekers who reached the Greek islands.

The following analysis looks first of all at the main elements of the overall EU/Turkey deal on the refugee crisis, then in more detail at the new plan to return asylum-seekers to Turkey.

The EU/Turkey deal

The EU/Turkey deal contains concessions on both sides. The EU side has agreed: the opening of another chapter in the EU/Turkey accession process, and preparatory work by the Commission on further chapters; a proposal to lift Schengen visa requirements for Turkey by October 2016, if Turkey meets the requirements of the EU’s ‘roadmap’ on visa liberalisation; and a ‘Refugee Facility for Turkey’, totalling of €3 billion for Turkey. Subsequently, the Commission adopted a Recommendation on an EU ‘humanitarian admission scheme’ of Syrian refugees from Turkey (discussed in detail by Laura Robbins-Wright here).

In return, the Turkish side agreed: to readmit non-Turkish nationals to its territory, from June 2016; to apply a previously-agreed plan on the status of Syrian refugees in Turkey; and to prevent non-EU citizens from leaving.

There are also agreements in both sides’ mutual interest: to hold regular summits (at least twice a year); and to ‘upgrade’ the EU/Turkey customs union, to include services and investment, with negotiations to start before the end of 2016.

Several elements of the deal should be clarified further. It’s sometimes claimed that the deal has ‘fast-tracked’ Turkish membership of the EU. This is clearly not the case. Turkey applied for EU membership in 1987, and negotiation talks opened 18 years later, in 2005. In the eleven years since, the EU and Turkey have agreed only one of the 35 ‘chapters’ of issues being discussed in the negotiation. Before last year’s deal, they had opened another 13 chapters; the deal raised that number to 14. There is no date to open talks on the remaining 20 chapters; the deal is expressly without prejudice to EU Member States’ position on the planned ‘preparatory work’. Overall, the deal means that the enlargement negotiations will now move at the pace of a turtle, instead of a snail.

The prospect of Turkish accession to the EU also faces a number of obstacles on the EU side: objections by many Member States (including possible referendums), and misgivings by the European Parliament (which must approve accession treaties). Nor would accession lead immediately to free movement of Turkish citizens to the EU. Recent accession treaties have provided for waiting periods of seven years before workers from the new Member States can move to the older Member States, and the UK, which has a veto over accession treaties, insists that future enlargements must provide for even longer waiting periods.

As for the visa waiver, it should be noted that it will apply to (short-term) visas to visit the Schengen states. Therefore it will not ever apply to the UK and Ireland; and does not yet apply to Romania, Bulgaria, Croatia or Cyprus. It’s the EU’s usual practice to offer visa facilitation (fast-track issue of visas, with reduced fees) and then a full visa waiver to neighbouring States which have agreed a readmission treaty. As the text of the EU/Turkey deal points out, that waiver is dependent in each case upon the third State fulfilling a list of conditions set out by the EU (for the Commission’s most recent report on Turkey meeting those conditions, see here).

It’s the readmission deal – the quid pro quo for the visa waiver – that is central to the issue of the refugee crisis. The EU/Turkey readmission treaty has applied since October 2014. It applies to Turkish citizens straight away, but Turkey (like many other states signing up to readmission treaties) negotiated a delay before it applies to nationals of other countries. That’s a three year delay, so it was due to expire in October 2017. However, in light of the perceived migration and refugee crisis, the EU was not willing to wait that long until it called upon Turkey to accept third-state citizens back onto its territory.

Finally, the ‘Refugee Facility for Turkey’ aims to reduce the ‘push’ factor which leads to departures from Turkey to the EU. According to the Decision establishing the fund – which Member States finally agreed to recently – the Fund will assist refugees and host communities. No further details are given.

Before we look at the substance of the law on returning people to Turkey, it’s useful to make some general observations on EU policy in this area. Some critics of EU asylum policy argue that it should be more like the Australian policy. In fact, in some ways the EU is moving towards such a policy, as we’ll see. But – leaving aside for a moment the desirability of the EU adopting an ‘Australian’ asylum policy – there are legal, political, geographical and practical limits to doing so.

In a nutshell, Australia intercepts vessels of asylum-seekers on the high seas (international waters) and arranges for the asylum-seekers to be detained and their applications processed in other countries, which Australia considers to be ‘safe’. Furthermore, Australia resettles confirmed refugees directly from third countries (about 13,000 a year), as its contribution to sharing the burdens of the countries which host those refugees (the large majority of refugees live in developing countries).

There’s no legal obligation upon the countries which Australia considers ‘safe’ to take the asylum-seekers and process them. The UN Convention on Refugees (the ‘Geneva Convention’) imposes no such obligation (on the international law framework for ‘safe third country’ rules, see discussion here). Even if it did, some of the countries concerned haven’t ratified that treaty. So Australia has to talk those countries into accepting the people concerned. They won’t accept unless Australia pays most of the costs.

How does this compare with the EU? First of all, the numbers are hugely different:18,000 people arrived illegally by sea in Australia in 2012-13, whereas over a million potential asylum-seekers arrived in the EU last year. We’re comparing apples and orchards here. There are simply more people wanting to apply for protection in closer vicinity to the EU, as compared to Australia, and the distance to travel is shorter. Furthermore, there are no ‘high seas’ between Greece and Turkey, so interception raises different legal issues. Once would-be asylum-seekers reach Greek waters, EU law says they can apply for asylum, and Greece is also bound by the European Convention on Human Rights (ECHR) as regards them.

That brings us to the next distinction. The Australian constitution has weak human rights protection, and that country’s High Court has recently ruled in favour of the offshore detention policy. In contrast, EU countries are governed by the case law of the European Court of Human Rights (ECtHR), which is open to individual complaints and can give binding rulings, often critical of national policies in this area. While Australia has signed up to the International Covenant on Civil and Political Rights (ICCPR), and allows individuals to make complaints to the United Nations Committee which interprets that Covenant, the Committee’s rulings aren’t binding. When the Committee rules against Australian policy on asylum-seekers – which it often does – Australian politicians in effect throw the ruling on the barbecue.

So given the large numbers concerned and the legal constraints, if the EU wants non-EU countries to take back non-citizens of those countries who have made their way to the EU, it needs to offer a lot to them to convince them to do so. At first sight, it may seem overly generous for the EU to offer money to Turkey, waive visa requirements and accelerate the accession process a little, in order to secure Turkey’s cooperation as regards refugees and migrants. But Turkey is under no obligation now to take back non-citizens or to restrain them from leaving. Even after it agrees to accept returns of non-citizens to its territory, it could end its obligations at any time by denouncing the readmission agreement – if it is willing to accept the re-imposition of visa requirements by the EU as a consequence. The financial assistance, if spent as intended, will also reduce the ‘push’ factor for migration of Syrian refugees towards the EU.

Returning people to Turkey

Turkish citizens

Turkey is already obliged to accept back its own citizens under the readmission agreement with the EU. Turkish citizens in the EU might have rights to stay under the EU’s immigration and asylum legislation, or under the EU/Turkey associationagreement. But they have no general right of free movement to the EU, and there is no prospect of it being extended to them before (or indeed well after) EU membership. So those Turkish citizens in the EU without such a right to stay, including failed asylum-seekers, must be returned.

It should be noted that the EU Commission has proposed to list Turkey as a ‘safe country of origin’ for asylum purposes, meaning that asylum claims by Turks would be fast-tracked (but not rejected automatically). This is a rather dubious suggestion (for the reasons set out here), and it is not yet known whether it will be accepted.

Non-Turkish citizens: Irregular migrants

Turkey is not obliged to accept back any non-Turkish citizens until it brings forward the relevant obligations in the EU/Turkey plan – as it has agreed to do so. If someone has never applied for asylum, and has no other ground to stay, EU Member States will then be able to return them to Turkey, if the Member States can prove that the person was previously in Turkey. It should be sufficient to show that the person concerned crossed from Turkey to a Greek island.

This is equally the case for failed asylum-seekers, if the person concerned has failed on the merits. In other words, if the non-Turkish citizen has not convinced the Member State’s authorities (or the courts on appeal) that he or she faced persecution or serious harm, that person could be sent back to Turkey once that country extends the scope of the readmission deal.

The more difficult question – which is the subject of the new plan – is whether asylum-seekers who have come via Turkey can be rejected and returned to Turkey on the grounds that their applications are inadmissible. Let’s be clear what that means: those applications would not be rejected on the basis that the person wasn’t a genuine refugee, but that he or she either (a) could have applied for protection in Turkey or (b) already had protection there. The former is the ‘safe third country’ concept; the latter is the ‘first country of asylum’ concept. There are detailed definitions of each concept in EU law, in the Asylum Procedures Directive. We will consider those definitions in turn.

Is Turkey a ‘safe third country’?

On Thursday 28 January 2016, Diederik Samsom, leader of the Dutch Labour Party, announced in an interview with the newspaper De Volkskrant (followed by an interview on the nightly TV programme Niewsuur) a Dutch proposal for a new plan to radically reduce the number of migrants and asylum-seekers entering the EU from Turkey. The proposal was immediately baptised ‘the Samsom Plan’.

The plan would have the support of Dutch PM Mark Rutte and would also receive support by a number of EU Member States, among which Germany, Austria and Sweden. The idea is to offer Turkey the resettlement of 150,000 to 250,000 refugees per year from Turkey to the EU countries that voluntarily agree with the plan. This resettlement would presumably be on the basis of the Commission Recommendation on humanitarian admission from Turkey, referred to above. In exchange for this, Turkey would have to accept the return of all migrants and asylum-seekers who cross the Greek-Turkish border irregularly. According to Mr Samson, these people would have to be very rapidly returned from Greece to Turkey by ferry-boat, and it would be Turkey’s responsibility to deal with their reception and asylum application.

This new plan is based on the assumption that Turkey can be considered a ‘safe third country’ – a non-EU country where an asylum-seeker can apply for asylum and be granted access to asylum procedures and reception conditions in line with international and EU law.

The Samsom Plan, however, does not seem to come from Mr Samsom’s mind. The European Stability Initiative (ESI), a think tank specialised in Southeast Europe, presented a very similar proposal in October 2015. The original plan, based on the fundamental idea of considering Turkey a safe third country, was called ‘Merkel Plan’, because initially Germany alone would have the main role in the resettlement scheme with Turkey. The original plan was then further developed (becoming‘Merkel Plan 2.0’) and a ‘coalition of the willing’ (including the Netherlands) was gathered around Germany. From October 2015 to January 2016 the ESI presented this proposal in different countries across Europe, but it was only following Mr Samsom’s interview, that the now renamed Samsom Plan burst into the public debate.

What is the legal definition of a ‘safe third country’? Article 38(1) of the Asylum Procedures Directive sets out a series of legal requirements that need to be met in order for a third country to be considered ‘safe’ for asylum-seekers:

  1. a) life and liberty shall not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
  2. b) there shall be no risk of serious harm (consisting of: death penalty; torture or unhuman or degrading treatment; or a serious threat to the applicant’s life due to indiscriminate violence in situations of conflict, as defined by Article 15 of theQualification Directive, ie the concept of ‘subsidiary protection’);
  3. c) the principle of non-refoulement (non-return to an unsafe country) shall be respected; and
  4. d) the possibility shall exist for the applicant to claim refugee status and to receive protection in accordance with the  Geneva Convention.

Article 38(2) establishes also several procedural guarantees. The safety of a third country must be always assessed on a case-by-case basis in order to check whether the notion is applicable to the particular circumstances of the individual applicant concerned. Moreover, the applicant must be guaranteed the right to challenge the application of the safe third country concept to his or her case, based on the fact that that country may not be safe in his or her particular circumstances. The question is whether an extremely rapid procedure as the one envisaged by Mr Samsom, would allow for a case-by-case examination of the individual circumstances of each asylum-seeker arriving in Greece from Turkey.

A further, more practical, question concerns who would be responsible for these procedures. Considering the difficulties faced by the Greek authorities in managing the current migrant flow and the established deficiencies of the Greek asylum system, it is hard to believe that the Greek authorities (despite the assistance provided by Frontex and the European Asylum Support Office, EASO) would be able to implement a systematic readmission plan as far-reaching as the one foreseen by Mr Samsom. As mentioned above, such plan must indeed be based on the individual consideration of each asylum application, otherwise it could amount to  a violation of the prohibition of collective expulsions entailed in Article 4 Protocol 4 of the ECHR. Such practice has been condemned by the European Court of Human Rights (ECtHR) in the famous Hirsi case, where the Grand Chamber found Italian authorities responsible for violating the ECHR, because they returned a group of Eritrean and Somali migrants intercepted on the high seas back to Libya without granting them the possibility to apply for asylum. The same rule obviously applies to asylum-seekers who enter the territorial waters or land on the territory of a Member State.

In addition, according to Article 46 of the Procedures Directive, asylum-seekers have the right to refer to a national court the decision to consider their application inadmissible pursuant to Article 33(2). They can stay on the territory during their initial application, and apply to a court to stay during this appeal. The Grand Chamber of the ECtHR unanimously confirmed in Hirsi (and reiterated in following case law – see for instance, Sharifi and others v Italy and Greece and Khlaifia and others v Italy) that return is only possible after the asylum-seeker has been able to claim asylum before a national authority, and to stay on the territory at least until the first instance decision on the application was made. However, it is even more doubtful that the accelerated procedure proposed by Samsom would allow for asylum-seekers to challenge the decision to return them to Turkey in front of a judicial authority and in the respect of all due procedural safeguards under the Directive and the ECHR.

However, besides the procedural issues, the crucial question here is more substantive: can Turkey be considered as a safe third country? Does Turkey comply with the requirements established by the Procedures Directive?

First, Turkey ratified the 1951 Geneva Convention and its 1967 Protocol, but maintains a geographical limitation for non-European asylum-seekers, thus recognising refugees originating only from Europe (i.e. from countries which are members of the Council of Europe). The geographical limitation provides the first barrier to accessing asylum in the country. Moreover, Syrians represent a particular case. They were at first received as ‘guests’ and then subject to a temporary protection regime, formalised by a Regulation on Temporary Protection only in October 2014 (for more details, see the updated AIDA Country Report on Turkey). The basic idea behind the temporary protection regime is to host Syrians until the conflict is over and then possibly let them return to their country of origin. As such, Syrians have a right to reside in the country but are denied the prospect of a long-term legal integration. They have access to limited rights compared to asylum-seekers in the ‘normal’ procedure, in particular as concerns access to education for children (on this point, see for instance, Human Rights Watch report) and access to employment. Although in January 2016, the Turkish government adopted adecision aimed at ensuring that Syrians can enter the labour market, the effects of this new regulation are yet to be seen in practice. Most importantly, Syrians in Turkey do not have access to refugee protection in its full sense, as enshrined in the Geneva Convention. For the reasons set out in more detail in the annex to this blog post, it is arguable that the ‘safe third country’ clause can only be interpreted as applying to countries which have ratified and fully apply the Geneva Convention.

Secondly, Turkey should respect the principle of non-refoulement, a prohibition on returning a person to a place where he or she faces a risk of persecution, torture, or inhuman or degrading treatment. However, several reports suggest that Turkey has engaged in refoulement and push-back practices throughout the years 1990s and 2000s. In particular, in November and December 2015, Human Rights Watch andAmnesty International denounced an increase in deportations, push-backs, arbitrary detentions and physical violence against asylum-seekers trying to cross the Turkish southern border coming from Syria or Iraq, or trying to enter Greece from Turkey, either by land or sea. This increase would coincide with the period leading up to and after the signing of the above-mentioned EU/Turkey deal.

Thirdly, in Turkey asylum-seekers and migrants in general, face a number of obstacles which may increase their risk of serious harm. In particular, Turkey has a record of treating asylum-seekers and refugees harshly in detention: episodes of torture or inhuman or degrading treatment have been reported by NGOs (Global Detention Project and Amnesty International among others) and condemned by the ECtHR in a series of judgments (see for instance, Abdolkhani and Karimnia v Turkey and the recent SA v Turkey, judgement of 15 December 2015). Furthermore, with reference to serious harm due to indiscriminate violence in a situation of conflict, the internal conflict between Turkey and the Kurdish rebels, which has escalated during the last year, may pose threats to the lives of asylum-seekers and refugees in the southeast of the country.

Therefore, it seems that Turkey does not fulfil many of the requirements for designation as a safe third country under the Procedures Directive. Even though the Samsom Plan does not mention this option, it seems now interesting to consider whether a similar policy could theoretically be implemented based on two different concepts entailed in the Procedures Directive, the concepts of ‘European safe third country’ and ‘first country of asylum’. The latter will be examined more in detail.

Is Turkey a ‘super-safe’ third country?

This wasn’t mentioned above, but the Asylum Procedures Directive also provides for a special category of ‘European safe third country’, which has been dubbed (sarcastically) the ‘super-safe’ third country concept. In this case, a Member State could have ‘no, or no full’ consideration of an asylum application – as foreseen by the Samsom Plan. The legal requirements for a country to be considered a ‘European safe third country’ are set out in Article 39(2) of the Directive:

  1. a) the ratification and full implementation of the Geneva Convention without any geographical limitation;
  2. b) the existence of an asylum procedure prescribed by law; and
  3. c) the ratification and full implementation of the ECHR.

Even though Turkey has in place an asylum procedure prescribed by law (Law on Foreigners and International Protection adopted in April 2013 is Turkey’s first-ever national legislation on asylum), is a party to the ECHR (even though one of the parties with the highest number of condemnations by the ECtHR for violations of this treaty) and has ratified the Geneva Convention, as mentioned above, it maintains a geographical limitation to the application of the Geneva Convention, excluding non-European asylum-seekers from the refugee status. For this reason Turkey could not even be considered a ‘European safe third country’.

Could Turkey be considered a ‘first country of asylum’?

Could then the notion of ‘first country of asylum’ apply to Turkey? Could asylum-seekers possibly be returned from Greece to Turkey based on the fact that Turkey is their first country of asylum?

Article 33(2)(b) of the Procedures Directive foresees the possibility for a Member State to deem an asylum application inadmissible if it considers a non-EU country to be a first country of asylum for a particular applicant. Article 35 establishes that a third country can be a first country of asylum in two cases:

  1. a) if the applicant has been recognised as a refugee in that country and can still avail himself or herself of that protection; or
  2. b) if the applicant otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement.

Article 35 further specifies that in applying this concept Member States may take into account the legal requirements provided for by Article 38(1) – i.e. those used to establish whether a country is a safe third country. It also states that asylum-seekers ‘shall be allowed’ to argue that the principle cannot apply to their particular circumstances. Furthermore, they also have the right to appeal pursuant to Article 46 of the Procedures Directive (and stay on the territory during the application and at least at the outset of the appeal), as discussed above.

For the reasons set out in the annex to this blog post, option (a) arguably refers only to obtaining status under the Geneva Convention. Therefore Turkey cannot be considered a first country of asylum for a non-European asylum seeker, due to its geographical limitation on that Convention. On the other hand, option (b) might apply. In Turkey, indeed, non-European asylum seekers can, at least theoretically, have access to an alternative form of protection: the so-called ‘conditional refugee status’ (for applicants who would qualify as refugees under the Geneva Convention but who come from a non-European country) or the EU-inspired subsidiary protection. Moreover, as mentioned above, asylum seekers originating from Syria have access to a different form of temporary protection.

These three alternative forms of protection differ in terms of the level of rights their holders benefit from, which in all cases (and in particular in the case of Syrians benefiting from temporary protection) is lesser than the one recognised to ‘European refugees’ (for details on the content of these three alternative forms of protection, see the AIDA Country Report on Turkey). The question is: could these forms of protection be considered as ‘sufficient protection’? How can a Member State establish when protection is ‘sufficient’?

Article 35 provides two reference points, one being strictly mandatory, the other one being optional. The first one is the respect of the non-refoulement principle. Turkey is formally bound to the principle of non-refoulement, being a party to the ECHR and having incorporated the principle into Article 4 of its Law on Foreigners and International Protection as well as in Article 6 of its Temporary Protection Regulation. However, as mentioned above, the country has a historical record ofrefoulement practices and there are allegations of a recent intensification of push-backs and deportations of Syrians and other asylum-seekers. Therefore, Turkey does not seem to be fully compliant with the principle of non-refoulement in practice. But, in light of the fact that each asylum application must be examined individually based on the specific circumstances of the case, Member States might argue that the risk of non-refoulement could be assessed on a case-by-case basis in order to establish if that particular applicant enjoys sufficient protection in Turkey.

The second reference point mentioned by Article 35 is Article 38(1). In deciding whether a third country can be considered a first country of asylum, Member States may apply the same criteria they use for determining whether that country could be a safe third country. As discussed above, Turkey does not seem to comply with most of the safe third country legal requirements and, on this basis, it might be argued that in general it should not be considered a first country of asylum. However, because this is a ‘may’ clause, Member States have no obligation to apply Article 38(1) requirements to Article 35 cases and can simply ignore the possible link between the two concepts.

Therefore, although the possible application of the concept of first country of asylum to Turkey seems in general rather controversial, Member States might apply it on an individual basis, based on option (b). However, if they decide to do so, Member States’ authorities would have to conduct a case-by-case assessment, taking into due consideration the particular circumstances of each individual applicant in order to determine whether he or she enjoys sufficient protection in Turkey and does not risk being refoulé(e). As discussed above, an individual examination of all asylum claims (including the applicant’s right to appeal against a negative decision) is incompatible with the extremely rapid procedure and systematic readmission mechanism envisaged by the Samsom Plan.

A change in EU law?

The above discussion is based on current EU legislation. It is, of course, possible in principle for the EU to amend that legislation via the usual process, or arguably via means of an ‘emergency’ measure on asylum pursuant to Article 78(3) TFEU. The previous use of Article 78(3), for a ‘relocation’ system, is being challenged byHungary and Slovakia. (On the latter challenge, see discussion here; and on the general legal issues concerning that provision, see discussion here.) There might be some specific procedural issues about the use of Article 78(3) to establish the Samsom Plan, but the underlying issue is substantive: could EU law be changed (by either means) to set up a ‘return ferries’ process?

The answer is clearly: No. All EU asylum measures are subject to the general rules in Article 78(1) TFEU: ‘compliance with the principle of non-refoulement’, and acting ‘in accordance with the Geneva Convention…and other relevant treaties’. Also, all EU measures are subject to the EU Charter of Fundamental Rights, which must be interpreted consistently with the ECHR (Article 52(3) of the Charter).

It must follow that at the very least, the ECHR case law minimum standards discussed above must apply. So no revised EU law can provide for return of people coming from Turkey without some proper individual consideration of their claim that Turkey would not be a safe country for them; and there must be a right to appeal and stay in the country at least until the first-instance decision is made on this issue. To the extent that the Samsom Plan does not respect this irreducible core of human rights protection, it would be illegal.

Conclusion

Although it is remarkable that Turkey adopted a new comprehensive EU-inspired asylum legislation and is a state party to major human rights conventions, such as the European Convention on Human Rights, the Refugee Convention and the Convention against Torture, the way it has so far implemented its international human rights obligations appears to be still faulty. In particular, the right to asylum in Turkey cannot be considered as ‘fully established’, especially because of the still largely dysfunctional asylum system and the existing inequalities in access to protection and content of protection, which at the present moment are affecting Syrian refugees in particular.

For these reasons, the Samsom Plan proposing the systematic return of all asylum seekers from Greece to Turkey in exchange for increased refugee resettlement in Europe, appears to be not only very difficult to implement (due to both legal and practical obstacles), but also based on the doubtful presumption that Turkey may be (soon) considered a safe third country for refugees and asylum-seekers.

Furthermore, it is unfortunate that the EU and Turkey did not agree to fully apply the Geneva Convention for Turkey, and that there are no mechanisms of accountability in place for the EU institutions to report either in general upon Turkey’s compliance with international human rights standards or in particular to explain exactly how the EU’s money is being spent.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: insidethegames.biz

**Emanuela Roman is a PhD candidate in Human Rights at the University of Palermo and junior researcher at the Forum of International and European Research on Immigration (FIERI). This article was written during the period she is spending as a visiting researcher at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section. Emanuela would like to thank all her colleagues at the VU Migration Law Section, in particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer and Hemme Batijes for their precious comments and advise. The sole responsibility for the content of this article lies with the authors.

Annex I

Interpreting the ‘safe third country’ clause in the Procedures DirectiveAs noted above, Article 38 of the Asylum Procedures Directive says that in a safe third country it must be possible for the applicant ‘to request refugee status and … to receive protection in accordance with the Geneva Convention’. In my view, this can only refer to States which have ratified and fully apply the Convention; therefore it cannot apply to Turkey. I am grateful for a discussion with Daniel Thym on this issue – although I should note that he holds the opposite opinion.

First of all, this interpretation is supported by the legislative history of the text, which is set out in detail in Annex II. The original draft in 2002 made expressly clear that the clause could apply even if a State had not ratified the Convention. During negotiations that text was revised so that the final wording states that it must be possible to get status ‘in accordance with’ the Convention. Attempts by several Member States to make it clear that alternative types of protection besides full Convention refugee status could also trigger the clause were not successful.

Secondly, the ordinary meaning of the words ‘in accordance with’ in English is ‘in compliance with’, although the other language versions are equally valid. This is confirmed by the words ‘refugee status’: the full title of the Geneva Convention is the ‘Convention on the Status of Refugees’. How can one apply for ‘refugee status…in accordance with the Geneva Convention’ if the state concerned has not ratified, or does not fully apply, the ‘[Geneva] Convention on the Status of Refugees’? While the definitions clause refers to Member States as regards the definitions of ‘refugee’ and ‘refugee status’, this logically cannot be intended to apply to Article 38, since that Article only refers to applications made in non-EU states.

Thirdly, the a contrario rule supports this interpretation. Where the drafters of the Directive wanted to refer to the possibility of applying for an alternative form of protection, they did so expressly, as in Article 35(b) of the Directive. Admittedly Article 39, which refers more clearly to the geographical reservation of Turkey as a (failed) condition for the ‘super-safe’ countries rule to apply, points in the opposite direction. But to the extent that these two a contrario analyses simply cancel each other out, the interpretation in line with the legislative history and ordinary meaning should apply.

Similarly ‘recognised as a refugee’ under Article 35(a) of the Directive should be interpreted to refer to the Convention refugee status, in the absence of any indication that any alternative meaning is intended. However, Article 35(b) does clearly provide for an alternative option of designating a state as a ‘first country of asylum’ due to the existence of other forms of protection.

Annex II: Legislative history of the ‘safe third country’ clause

  • Commission proposal, 2002: explicitly provides in an Annex that a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 6929/03 – a note indicates that the Council will start work looking at ‘safe’ country concepts. This plan is soon dropped; the Council looks first at Arts 1-22 instead.
  • Council doc 7214/03 – Annex unchanged at this point, no MS comments
  • Council docs 10064/03 and 10456/03 – ditto
  • Council doc 10722/03 – minor amendment to annex to state that Cartagena declaration countries must have a procedure compliant with the principles of the Geneva Convention
  • Council doc 11108/03 – no change
  • Council doc 11575/03 – annex shortened a little
  • Council doc 12281/03 – annex shortened significantly
  • Council doc 12734/03 – annex is simplified, but still provides for rules (same as in previous text) on when a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 13369/03 – same text, but Germany now has a reservation linked to the ‘super-safe’ country clause, and Finland says the relevant clause could be deleted
  • Council doc 13901/03 – unchanged
  • Council doc 13902/03 – unchanged. The Presidency notes that delegations have inflexible positions on these provisions.
  • Council doc 14020/03 – ditto
  • Council doc 14182/03 – issue sent to the Council
  • Council doc 14330/03 – text unchanged
  • Council doc 14686/03 – text unchanged. But Spain suggests deleting the annex and having a short description of ‘safe third country’ in the main text, which is vague as to whether the state in question must have ratified the Convention
  • Council doc 14686/03 add 1 – Presidency proposes to delete the annex and have a short description of ‘safe third country’ in the main text, which only mentions the Convention as regards non-refoulement
  • Council doc 15153/03 – clause now in the main text, annex deleted. No change re Convention issue. DE still has reservation linked to ‘super-safe’ clause
  • Council docs 15153/03 rev 1 and 2 – amended to refer to ‘request recognition and be granted protection by that country or by the UNHCR as a refugee’. Spain wants to delete ‘as a refugee’. BE, NL and FI want to add express clause requiring ratification of the Convention and/or observation of the Convention. DE reservation is gone.
  • Council doc 15198/03 – unchanged
  • Council doc 15198/03 add 1 – UK wants to delete the whole sub-para
  • Council doc 6871/04 – redraft adds clause separate from main criteria for ‘safe third country’: ‘…Member States shall have regard to whether the third country has ratified the Geneva Convention…’ when assessing the application of those criteria. The clause in the main criteria now reads ‘request and be granted protection as a refugee in that country’. This deletes the reference to the UNHCR and makes it clear that it must be the country which grants refugee status.
  • Council doc 6954/04 – unchanged, but UK joined by EL/ES/NL/AT want to add the words ‘or other forms of international protection’ to the criteria
  • Council doc 7183/04 – unchanged, NL no longer supporting the UK position
  • Council doc 7184/04 – unchanged
  • Council doc 7184/1/04 – unchanged. UK and ES now want to change to ‘or another form of status which otherwise offers sufficient protection’ to the criteria. This is similar to final ‘first country of asylum’ clause.
  • Council doc 7484/04 – due to deadlock, Presidency proposes dropping clause on ‘request and be granted protection as a refugee’ to get a deal.
  • Council doc 7729/04 – ditto
  • Council doc 8166/04 – redraft retains ‘request and be granted protection as a refugee’ clause, drops requirement to take into account whether third State has ratified Convention
  • Council doc 8158/04 – same text and reservation as in 7184/1/04
  • Council doc 8413/04 – text amended to read:  ‘the possibility exists to requestrefugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’. UK and Spanish proposal rejected – link to Geneva Convention in fact made explicit instead
  • Council doc 8415/04 – as before, except the UK seeks to amend to read ‘in accordance with the principles of the Geneva Convention’. This is clearly rejected in the final version.
  • Posted by Steve Peers 

Protecting civilians in armed conflict International framework and challenges

EUROPEAN PARLIAMENT RESEARCH SERVICE BRIEFING (January 2016)

Author: Carmen-Cristina Cîrlig

SUMMARY

In today’s armed conflicts, whether international or intra-state, the vast majority of casualties are now civilians. Increasingly, civilians are victims of deliberate attacks and other serious violations by parties to a conflict – both states and non-state armed groups, despite the existence of strict legal rules intended to spare civilians from the effects of hostilities: the principles of international humanitarian law, of international human rights law and refugee law.
The lack of compliance with these norms, as well as the United Nations Security Council’s inability to take action to protect civilians in some specific cases, reflects the key concerns regarding the protection of civilians affected by armed conflicts worldwide. Moreover, specific protection concerns relate to the situation of women, children and displaced persons.
Besides this international legal framework, another related concept has garnered significant support internationally in the past decade: the Responsibility to Protect (R2P), meant to apply only in cases of atrocity crimes. However, R2P remains controversial, given the challenge of adequate implementation, particularly with regard to its military intervention aspects.
Notwithstanding the many challenges with regard to protecting civilians in armed conflict, the European Union is a strong promoter of international humanitarian principles and of R2P, and other protection-related issues are consistently among its priorities.

Armed Conflicts

 

Trends in armed conflicts and impact on civilians…

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L’ELSJ à l’heure de l’état d’urgence : un effet collatéral du « syndrome shadok » de la lutte antiterroriste française ?

ORIGINAL PUBLISHED ON CDRE PAGE  (2 FÉVRIER 2016)

by Pierre Berthelet, CDRE

« Il vaut mieux pomper d’arrache-pied même s’il ne se passe rien que risquer qu’il se passe quelque chose de pire en ne pompant pas ». La devise des Shadoks n’aura nullement échappé à l’observateur du droit français de la lutte antiterroriste au moment où le gouvernement prolonge la loi sur l’état d’urgence, validée par le Conseil d’État dans une ordonnance du 27 janvier 2016. La France, en proie à une pulsion législative si bien évoquée dans l’ouvrage Un droit pénal postmoderne ?, empile les textes juridiques destinés à faire face à la menace terroriste. La France semble être atteinte du « syndrome Shadok » caractérisé par une inflation législative constante.

Ce « syndrome Shadok » évoqué par Yves Trintignon de l’Université du Québec met en évidence le fait que le gouvernement français, confronté aux attaques terroristes de janvier et de novembre 2015, s’est empressé de renforcer les capacités des services de renseignement sans réellement s’interroger sur les difficultés rencontrées en matière d’organisation, sur les défaillances de leurs méthodes, ou encore sur les lacunes de leurs pratiques opérationnelles. Pis, il aggrave la situation en répondant promptement à la demande de ces services, et à l’inquiétude de l’opinion publique, sans véritablement faire preuve de distanciation à l’égard des effets pervers à plus long terme.

 

Une telle vision à court-termiste consistant à « pomper » sans relâche, c’est-à-dire à renforcer constamment le dispositif antiterroriste, est constatée à l’échelon national, mais aussi à l’échelon européen. D’emblée, la construction européenne dans ce domaine connaît des progrès sensibles. Ces avancées, observables concernant particulièrement l’ELSJ, s’expliquent notamment par l’implication de la France dans le processus décisionnel, désireuse que l’Union soit pleinement associée à la lutte qu’elle mène (1).

 

Cependant, à y regarder de près, la construction européenne risque d’être davantage victime que bénéficiaire de l’engagement de la France dans l’intégration européenne. En effet, son implication est avant tout dictée par une logique en vertu de laquelle le gouvernement entend obtenir un crédit politique à travers une réaffirmation de son autorité. L’État cherche à se légitimer à travers les lois qu’il prend, peu importe d’ailleurs leur efficacité. Il est d’ailleurs à noter que la France réclame une plus grande implication de l’Union dans la lutte antiterroriste, mais elle se garde bien de demander une évaluation globale de l’efficacité des politiques menées par les différents États membres.

 

Le « syndrôme Shadok » de la lutte antiterroriste française, qui consiste à pomper toujours plus même si cela ne sert à rien, a un impact néfaste sur l’édification de l’ELSJ à long terme (2).

 

Toute tentative de vouloir ralentir cette course effrénée est susceptible de constituer un obstacle inadmissible à l’égard d’un État membre désireux de se défendre face à une menace d’une gravité extrême. Qui plus est, les valeurs sur lesquelles l’Union est fondée, la préservation de l’État de droit et le respect des droits de l’homme pourraient faire les frais d’une telle course aveugle. On voit dès lors l’importance du juge européen, comme rempart face au cercle vicieux sécuritaire traduit en langage shadok par « je pompe donc je suis ».

 

  1. Le rôle moteur dans la lutte antiterroriste d’une France aux allures pro-européenne

 

La France apparaît comme l’aiguillon, désireuse de progresser dans l’intégration européenne, et ce, pour ce qui est de l’ELSJ. Un document du Conseil indique ainsi que la délégation française souhaite élargir le champ de la proposition de directive présentée par la Commission européenne le 2 décembre 2012.

Pour mémoire, ce texte, remplaçant la décision-cadre 2002/475/JAI du Conseil relative à la lutte contre le terrorisme, entend harmoniser la législation nationale concernant l’incrimination des « combattants étrangers », de même que l’aide apportée à la sortie du territoire. La décision-cadre a fait l’objet d’une modification en 2008 pour rendre punissable la provocation publique à commettre une infraction terroriste, ainsi que la diffusion sur Internet de la propagande terroriste.

De son côté, la France estime qu’il convient d’aller au-delà de cette actualisation de la législation européenne au regard des textes internationaux ayant trait à ce phénomène des « combattants étrangers » (la résolution du Conseil de sécurité des Nations unies (RCSNU) 2178 (2014)) et le protocole additionnel à la Convention du Conseil de l’Europe pour la prévention du terrorisme de mai 2015).

Elle considère notamment qu’il importe de rendre punissable dans tous les États membres le trafic d’œuvres d’art en provenance de zones sous contrôle terroriste et de supprimer les pages internet incitant au terrorisme ou d’en bloquer l’accès.

Les ajouts de la France dans la proposition de directive s’inscrivent dans un contexte où ces questions font l’objet d’une attention particulière en droit interne.

Ainsi, concernant le trafic d’œuvres d’art, la répression du commerce illicite de biens culturels figure dans le projet de loi contre le crime organisé et le terrorisme, qui doit être présenté courant février 2016.

Pour ce qui est de la suppression des pages internet faisant l’apologie du terrorisme, le Sénat avait adopté le 1er avril 2015 une résolution européenne réclamant l’extension des compétences du Centre européen de lutte contre la cybercriminalité (EC3) en lui donnant la possibilité de supprimer des contenus terroristes ou extrémistes.

Peu avant, le 5 février 2015, un décret a été adopté fixant les modalités permettant aux internautes d’avoir accès à des pages web faisant cette apologie.

La force de proposition de la France concernant ce projet de directive est le reflet d’une volonté politique affichée concernant l’ELSJ : dans une déclaration après le Conseil JAI à Amsterdam du 25 janvier 2016, le ministre de l’Intérieur, Bernard Cazeneuve, fixe les demandes françaises, entendues comme des priorités « essentielles » figurant dans un agenda qui « n’est pas négociable ». Il énumère également les mesures sur lesquelles la France a obtenu satisfaction, en prenant le soin d’ajouter que bon nombre de ces mesures ont été initiées sous son impulsion : la directive PNR, la modification de l’article 7-2 du code frontières Schengen visant à instaurer des contrôles approfondis sur les ressortissants européens quittant l’espace Schengen, ou encore la révision de la directive de 1991 relative au contrôle des armes à feu.

 

  1. La stratégie de fuite en avant sécuritaire d’une France tentée par le repli national

 

La déclaration du ministre de l’Intérieur à l’issue du Conseil JAI du 25 janvier 2016 démontre l’intention de la France de continuer « son travail de persuasion » avec « beaucoup de volontarisme », pour reprendre les termes du texte. Elle fait office également de satisfecit, à la fois au sujet de l’efficacité de l’implication de la France dans la sphère institutionnelle et concernant l’action de l’Union européenne menée sous sa houlette, en matière de lutte antiterroriste.

 

La France s’est engagée depuis de nombreuses années dans une logique de renforcement continuel de l’arsenal répressif au nom de ce que le président de la République a qualifié de « guerre contre le terrorisme ». La fuite en avant sécuritaire se traduit par l’adoption de nombreux textes en 2014 et en 2015 : plan d’avril 2014 contre la radicalisation violente et les filières terroristes, loi du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme et décrets d’application du 14 janvier 2015 destinés à mettre en place l’interdiction administrative de sortie du territoire des ressortissants français, décret précité du 5 février 2015, décret du 4 mars 2015 relatif au déréférencement des sites, plan d’action du 18 mars 2015 pour lutter contre le financement du terrorisme, loi du 24 juin 2015 sur le renseignement et ses multiples décrets d’application, et décret du 14 novembre 2015 instaurant le régime de l’état d’urgence, prorogé par la loi du 20 novembre 2015.

 

D’autres projets sont en cours : projet de loi précité contre le crime organisé et le terrorisme, proposition de loi relative à la sécurité dans les transports, projet de loi constitutionnelle « de protection de la nation » comprenant deux volets, à savoir la déchéance de la nationalité d’un binational devenu français et l’inscription dans la Constitution des conditions de déclenchement de l’état d’urgence.

 

Cette fuite en avant est inquiétante, car s’il est possible de comprendre la stratégie de la France dans une perspective purement nationale, notamment à l’aune des manœuvres déployées par le gouvernement à l’égard du Front national, il est aussi possible d’inscrire le renforcement de l’arsenal répressif dans un contexte de dérive autoritaire que connaissent bon nombre de gouvernements européens, la Pologne au premier chef, vis-à-vis de laquelle la Commission a engagé une procédure de dialogue sur la base de l’article 7.1 TUE.

 

Une telle fuite en avant se traduit, sur le plan européen, par davantage de fermeté de la part de la France : fermeté vis-à-vis d’un Parlement européen réticent à adopter la directive PNR, fermeté à l’égard des délégations nationales enclines à tergiverser au Conseil sur les propositions d’actes en instance d’adoption, fermeté à l’encontre de la Commission désireuse de vérifier la conformité de la décision française de rétablir les contrôles aux frontières intérieures.

 

L’ultimatum lancé à celle-ci par le gouvernement français concernant le rétablissement de ces contrôles en vertu de l’art. 25 du Code Frontières Schengen, aussi longtemps que perdurerait la menace terroriste, est significatif de sa volonté d’afficher, sur tous les fronts, une détermination sans faille. Or, lerétablissement temporaire prolongé en dehors des délais prévus par le Code pose problème du point de vue de la légalité européenne, en particulier au regard des art. 23, 23bis et 25 du code.

L’attitude de la France consistant à faire preuve de fermeté tous azimuts lui permet de faire illusion sur le plan politique. Celle-ci se pare des atours d’une nation leader de la construction européenne pour mieux dissimuler les tentations de repli national. En effet, les efforts menés pour se trouver à la pointe de la lutte antiterroriste masquent la prévalence des intérêts nationaux érigés, en matière sécuritaire, au rang de principes absolus, insusceptibles de limitation.

 

D’ailleurs, pour s’en convaincre, il suffit de constater que, quel que soit le gouvernement, de droite ou de gauche, la France n’hésite pas à remettre en cause publiquement l’acquis de Schengen si celui-ci lui porte préjudice. Une telle attitude se révèle problématique d’un point de vue politique, car elle menace de détricoter cet acquis, faisant, par la même occasion, le jeu de certains gouvernements situés à l’Est de l’Europe.

 

Une telle attitude, prompte par ailleurs à désigner Schengen comme bouc émissaire, et à pointer les défaillances de l’ELSJ, se révèle problématique d’un point de vue juridique, car le droit français adopté dans le contexte de la lutte antiterroriste pose la délicate question de sa conformité du point de vue du droit européen. Ainsi, une France sous état d’urgence prolongé aurait-elle pu adhérer à l’Union européenne conformément aux critères insérés aux art. 6 et 49 TUE ? De manière générale, la législation française est-elle conforme à l’art. 2 TUE ainsi qu’aux dispositions de la Charte européenne des droits fondamentaux ?

 

La question est d’autant plus pertinente que le forcing français à l’égard de la directive PNR pourrait conduire à une annulation de ladite directive et ce, au regard de la jurisprudence Digital Rights. À ce propos, les juges européens se montrent sévères à l’égard de la dérive sécuritaire observée dans les États membres.

 

Prenant appui sur cette jurisprudence Digital Rights, la Cour européenne des droits de l’Homme, dans un arrêt du 12 janvier 2016, Szabo et Vissy c. Hongrie (voir l’analyse de Sylvie Peyrou), s’est montrée très ferme à l’égard des mesures nationales prises dans le cadre de la lutte contre le terrorisme, en l’occurrence les opérations secrètes de surveillance antiterroriste.

 

Le rôle du juge européen n’a jamais été aussi important, non seulement comme défenseur du droit, mais aussi comme gardien des valeurs européennes. Il s’érige comme l’ultime recours face à cette fuite en avant sécuritaire préoccupante pour l’Europe et pour la France. Les mots de la Commission nationale consultative des droits de l’homme (CNCDH) dans sa déclaration du 16 janvier 2015 sur l’état d’urgence et ses suites sonnent particulièrement juste : « la France ne doit pas, sous l’emprise de la sidération, sacrifier ses valeurs, au contraire, elle doit renforcer la démocratie ».

 

Free at last? Detention, the European Arrest Warrant and Julian Assange

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 5 February 2016)

by Steve Peers

“Bianca Jagger is here!”

I had just arrived at a meeting in the House of Lords, to give a talk on the European Arrest Warrant (EAW) and human rights. I thought that having the famous human rights activist in the audience when I spoke would be the most exciting thing that could happen to me that day. But I was wrong.

“Bianca Jagger wants to ask you a question, before we start!”

My heart skipped a beat as the beautiful activist walked slowly, catwalkishly, across the room in my direction. Finally, she was right in front of me. My heart stopped beating entirely. And then she asked me her question:

“Will you be speaking for very long?”

Needless to say I subsequently gave one of my shortest talks ever – although I suspect that it seemed endless to Ms. Jagger. Indeed, I imagine that for her, listening to my talk was comparable to the lengthy periods of pre-trial detention which some people face on the basis of EAWs.

This brings me to Lanigan: a key judgment on lengthy pre-trial detention and EAWs, issued by the Court of Justice of the European Union (CJEU) last year. It seems only appropriate that I am discussing this case rather belatedly. On the other hand, though, it is very timely to take the opportunity to discuss also the relevance of this judgment to the UN opinion (released today) on the ‘arbitrary detention’ of Julian Assange – who is also facing an EAW. And just as I promised Ms. Jagger, I won’t detain my beautiful readers for very long.

The Lanigan judgment

Unfortunately EAWs are often issued for the most trivial reasons. A carpenter, removing a wardrobe door until he got paid. (What Would Jesus Do?) The theft of a piglet. And my personal favourite: the friend of a friend who came to a house party and took someone else’s can of beer. That last case makes me pine for the return of the death penalty.

Yet the Lanigan case usefully reminds us that EAWs are also issued for the most serious of crimes. Mr. Lanigan was wanted on murder charges in the UK, which issued an EAW to the Irish Republic. He was detained in Ireland while he fought the execution of the EAW. Finally, the Irish courts decided to ask the CJEU if the months he spent fighting the EAW were a breach of the deadlines to execute it – as set out in the EU Framework Decision which created it – or of human rights law. This was the first Irish reference to the CJEU on criminal issues, following the expiry on the limits of the CJEU’s criminal law jurisdiction in December 2014 (for more on that transitional issue, see here).

According to the CJEU, the continued detention of Mr. Lanigan pending the EAW did not invalidate the EAW itself. Nor was there an obligation to release him. First of all, the Court insisted that the time limits in the legislation (60 days to execute an EAW, with a possible 30 day extension) had to be complied with strictly. This followed its earlier ruling in the Forrest case, which concerned the British schoolteacher who had fled to France with an underage schoolgirl.

But then the Court ate its previous words. The problem was that in this case, strict compliance with the time limits conflicted with the underlying obligation to execute the EAW. The Court referred to its many previous rulings insisting on the limited exceptions to that latter obligation. So it gave preference to the underlying rule, ruling that the EAW remained valid once the deadline expired: the ‘time limit’ was not really a time limit at all. (I wouldn’t advise students, lawyers, journalists or many others to take the same approach to deadlines.)

It got worse for Mr. Lanigan. The CJEU ruled that the expiry of the deadlines did not mean that Ireland had to release him from prison either. It pointed out that the rules on detention in the Framework Decision were very vague: national judicial authorities have to decide on detention; the fugitive may be given bail, if the authorities take steps to stop him or her absconding; and the issue is basically subject to national law. The EU rules do say that fugitives must be released from custody after the execution of an EAW, if the deadlines to surrender the person to the State which issued the EAW are not complied with. But in contrast, there is no such obligation if a State misses the deadline to execute the EAW in the first place.

Yet if there’s no real deadline to execute an EAW, and no obligation to release a fugitive from jail because that ‘time limit’ is a legal fiction, people could effectively end up facing indefinite detention without trial. Rightly realising that this was unacceptable, the Court, for the first time, gave some grudging respect to the many references to human rights set out in the EAW law. In this case, that meant the rules on detention were subject to Article 6 of the EU Charter on Fundamental Rights, which had to be applied consistently with the rules on detention set out in Article 5 ECHR. So the relevant case law of the European Court of Human Rights applied: fugitives can only be detained if the EAW procedure is being carried out with ‘due diligence’. The national court has to consider all the factors, including any lax behaviour by the Irish authorities, the conduct of the fugitive himself, the possible sentence (severe in this case), the risk of absconding and the huge overrun of the deadlines.

The Assange case

In Lanigan, the CJEU wasn’t called upon to deal with the two detention issues that most frequently arise in practice as regards EAWs: (a) the lengthy pre-trial detention that fugitives are often subject to in the issuing State after they are surrendered there, and (b) the poor detention conditions which they sometimes face there. The CJEU will shortly rule on the latter issue, in the cases of Aranyosiand Caldararu.

Nor, obviously, was it called upon to deal with the peculiar circumstances of Mr. Assange: fleeing into a third State’s embassy, to escape the execution of an EAW, because the charges which motivated the issuing of the EAW were allegedly politically motivated, and a further extradition request from the USA was looming. Today we have a new twist: the opinion of a UN body that his ‘detention’ in the embassy is ‘arbitrary’.

How does EU law apply to this issue? In fact, EU law issues were discussed in the earlier UK litigation, up until the Supreme Court judgment. At that point, the UK courts were, like the Irish courts, unable to ask the CJEU questions about EU criminal laws adopted before the entry into force of the Treaty of Lisbon. Now they can. So Assange could bring a fresh challenge in the UK courts to the execution of the EAW in light of the UN ruling. He could either (a) request the UK courts (at any level) to ask the CJEU questions about the EAW law (the CJEU will likely give an emergency ruling, within about three months), or (b) litigate back up to the Supreme Court, then go to the European Court of Human Rights to complain if he loses his case.

What’s the likely outcome? The European Court of Human Rights is usually keen to take into account the opinion of other human rights bodies (for an exception, see the RMT case); but the CJEU is not. In the Grant case, it rubbished the opinion of the UN Human Rights Committee, and in the well-known Kadi line of case law, it deemed that the UN Security Council had not provided enough legal protection when listing people as terrorist suspects.

Applying the Lanigan case to the facts of Assange, there is a strong obligation upon the UK to execute the EAW, which obviously remains valid. His continued ‘detention’ also remains valid, since he has the obvious intention to abscond. There are human rights arguments: the risk of an unfair trial in Sweden or the USA, and the ‘detention conditions’ in the embassy. As I noted above, the CJEU is usually dismissive of human rights arguments in the EAW context, although there was a nod to ECHR case law in Lanigan. On this issue, things should be clearer after the judgments in Aranyosi and Caldararu, which we can expect before Easter.

It might be better, from Assange’s perspective, to fight all the way again through the UK courts without asking for a CJEU reference, and then head to the ECtHR in Strasbourg. That’s not entirely up to him, though: the UK government could ask the courts to send questions to the CJEU. If he does get to Strasbourg, the ECtHR might be torn between its usual enthusiasm to endorse the work of international human rights bodies, and its traditional deference to the CJEU on human rights matters within the scope of EU law. The Assange saga might have awhile to run yet.

SAVE THE DATE Round Table : Towards a new EU Directive against terrorism and foreign fighters: striking a balance between fundamental rights and public security ? (Rome – February 17,2016)

ENGLISH VERSION BELOW !

 

Fundamental Rights European Experts Group /Osservatorio sul rispetto dei Diritti fondamentali in Europa

Roma, 17 febbraio 2016, ore 17h00 – 19h30

Sala conferenze Fondazione Basso, via della Dogana Vecchia, 5

 

Con la partecipazione di:  Stefano Rodota’, Raffaella Pezzuto (Ministero Giustizia), Giuseppe Cataldi (Universita’ L’Orientale), Alberto Di Martino (Scuola Superiore S.Anna, Pisa ), Giuseppe Bronzini (C.Cassazione), Nicoletta Parisi (Universita’ Catania), Tony Bunyan (Statewatch) and Emilio De Capitani (FREE-Group).Stefano Rodota’, Armando Spataro, Raffaella Pezzuto (Ministero Giustizia), Giuseppe Cataldi , Alberto Di Martino, Giuseppe Bronzini, Nicoletta Parisi Emilio De Capitani.

Coordina il dibattito Elena Paciotti  

Obbiettivo di questa tavola rotonda è fare il punto sulla recente proposta di Direttiva europea in materia di terrorismo alla luce di quanto negoziato (nel silenzio quasi totale della stampa, del mondo accademico  e degli stessi parlamenti nazionali) sullo stesso tema presso il Consiglio di Sicurezza delle Nazioni Unite, il Consiglio d’Europa in materia di lotta al terrorismo e di contrasto al fenomeno dei cosiddetti “Foreign Fighters”. Il progetto di Direttiva europea merita particolare attenzione non solo alla luce della Carta dei diritti fondamentali (e della giurisprudenza della Corte) ma anche delle esigenze emergenti in materia di sicurezza interna ed esterna dell’Unione.

BACKGROUND  Agli inizi di Dicembre dello scorso anno la Commissione europea ha sottoposto al Parlamento europeo e al Consiglio un progetto di Direttiva che aggiorna il quadro legislativo europeo vigente in materia di lotta al terrorismo (che risale ancora al periodo pre-Lisbona :vedi Decisione Quadro 2002/475/GAI del 2002 emendata nel 2008 con riferimento alla nozione di atti preparatori).

La Presidenza del Consiglio UE ha già comunicato al Parlamento europeo che intende raggiungere un accordo nel primo semestre 2016 e un primo parziale accordo e’ previsto per la prossima riunione del Consiglio Giustizia e affari interni di marzo. Il Parlamento europeo ha nominato il relatore principale e i relatori ombra per cui e’ probabile che i negoziati inizino già nel corso delle prossime settimane.

Le ragioni di questa urgenza sono facilmente intuibili mentre lo sono meno quelle della sommaria valutazione dell’impatto delle norme vigenti e l’assenza di una valutazione di impatto di quelle ora proposte, in particolare in materia di lotta ai “foreign fighters”. Sotto questo profilo la proposta di Direttiva riprende la sostanza delle previsioni operative della Risoluzione del Consiglio di Sicurezza 2178/14 a loro volta già riprese in un protocollo alla Convenzione europea sul terrorismo del 2005.

Sotto questo profilo la proposta di Direttiva già traspone nel diritto dell’Unione il Protocollo COE e la stessa Convenzione Terrorismo anche se questi testi non sono ancora stati ratificati dal Parlamento europeo e dubbi esistano quanto alla portata delle responsabilità assunte dall’Unione e di quelle che rimarrebbero in capo agli Stati Membri.

DOCUMENTAZIONE DI RIFERIMENTO ACCESSIBILE : HERE

ENGLISH VERSION

Will take part to the debate :  Stefano Rodota’, Raffaella Pezzuto (Ministero Giustizia), Giuseppe Cataldi (Universita’ L’Orientale), Alberto Di Martino (Scuola Superiore S.Anna, Pisa ), Giuseppe Bronzini (C.Cassazione), Nicoletta Parisi (Universita’ Catania), Tony Bunyan (Statewatch) and Emilio De Capitani (FREE-Group).

Coordina il dibattito Elena Paciotti  

The aim of this round table is to take stock of the current state of negotiations of the new EU Directive on terrorism. The latter is the first full-fledged text addressing terrorism in the post-Lisbon and post-EU Charter of fundamental rights framework not to speak of the EU Internal Security Strategy.  Regrettably these EU debates have not until now been adequately echoed by the press, the academia or even the EU national parliaments. It could then be worth having a first public debate about that proposal in the light of the Charter of Fundamental Rights and of the jurisprudence of the Court, having at the same time well this the need for effective Union action on the Union’s internal and external security.

BACKGROUND : At the beginning of December last year the European Commission has submitted to the European Parliament and the Council a draft Directive updating the existing EU legislative framework in the fight against terrorism (which dates back to the pre-Lisbon period: see Framework Decision 475/2002 as amended in 2008 with reference to the notion of preparatory acts)

The EU Council Presidency has already informed the European Parliament that it intends to reach an agreement in the first half of 2016, (a first partial agreement is already scheduled for the incoming JHA Council meeting in March). The European Parliament Civil Liberties Committee (LIBE) already appointed its Rapporteur and the political Groups have appointed their shadow rapporteurs in order to define a majoritarian position to be negotiated with the Council Presidency in the coming weeks.

The reasons pushing for a fast-track procedure to adopt the new rules are quite understandable even if it is less understandable that no real evaluation has until now been made of the impact of the legal framework into force nor an impact assessment has been made for the proposed amendments criminalising the so-called “foreign fighters”.  In this respect the proposed Directive implements at EU level the operational art.6 of the United Nations Security Council Resolution 2178/14 which has already been mirrored in a Protocol of the European Convention on terrorism. The latter has already been signed in May 2015 both by the European Union and by the EU Member States (even if the respective competencies in this domain are still to be defined). It is worth noting that the EP has still to approve the accession to the Council of Europe Convention and to the Foreign Fighters Protocol.

BACKGROUND DOCUMENTATION ACCESSIBLE HERE

“EPPO and OLAF investigations:The judicial review and procedural guarantees”

Download the E-book: “EPPO and OLAF investigations:The judicial review and procedural guarantees”

Two years after the publication of “La protezione dei diritti fondamentali procedurali dalle esperienze investigative dell’OLAF all’istituzione del Procuratore europeo” (Protecting fundamental rights from the investigations of OLAF to the future EPPO), which contained reflections emerging from the international conference held in Rome from 12 to 14 June 2013, the Foundation Lelio and Lisli Basso – ISSOCO thought it was necessary, given the changes introduced, to stimulate a new debate on the establishment of a European Public Prosecutor’s Office.

To this end, it organised an international conference on 21-22 May 2015, preceded by the drafting of a background paper on the current state of the debate on the European Public Prosecutor’s Office. During the conference, speakers from EU institutions, the judiciary, and the legal profession and academia, presented their reflections on the issue, which have been collected in this book.

The first session focused on the current status and the main issues under discussion. In July 2013, the European Commission presented its proposal for a Regulation Establishing the European Public Prosecutor’s Office with the aim of creating a new prosecution system at EU level to address the shortcomings of the present system, based solely on criminal procedures undertaken by national judicial authorities, which have no jurisdiction over cross-border cases of fraud to the financial interests of the EU. The Commission proposal was questioned by the reasoned opinion of 14 national parliamentary assemblies, complaining that it did not comply with the principle of subsidiarity. Disagreeing with the objections raised, the Commission left the original proposal unchanged, but this underwent substantial changes during work undertaken by the Council. The negotiations that took place first under the Greek and Italian Presidencies, then under the Latvian Presidency, will probably extend into the next Presidencies (Luxembourg, Netherlands).

None of the speakers disputes the issue of “whether” the European Public Prosecutor should be established (fraud against the EU is in fact considered by everyone to be a criminal phenomenon of growing importance and gravity, which the establishment of the European Public Prosecutor should help to curb), but there is disagreement about “what” form it should take.

Two opposing views may be identified regarding the structure, the appointment and powers of the European Public Prosecutor’s Office. On the one hand, the European Commission proposal envisages a vertical decentralized structure with exclusive competence for crimes affecting the financial interests of the EU (which are the subject of the proposal for a PIF directive 2012). On the other, the Council’s proposal is more horizontal in nature and much more intergovernmental, providing for joint jurisdiction with Member States. Many speakers complained that this second vision diminishes the European dimension of the European Public Prosecutor’s Office and risks paralyzing its functions. Favorable to the Commission proposal is the European Parliament, which has called on the Council to take account of its position and to involve it in discussions, in line with the principle of sincere interinstitutional cooperation, in order to avoid problems at the time of the parliamentary vote on the final text.

Another element that some of the speakers at the Conference agree on, is the need to clarify and regulate the relations between the European Public Prosecutor’s Office and the existing bodies that contribute to the fight against fraud to the financial interests of the EU (OLAF, Eurojust). Attention has been focused on operational and functional cooperation and the importance of building on the experience gained, addressing any weaknesses.

The second session aimed to stimulate debate on judicial review. All the speakers highlighted the need for judicial review of EPPO actions and focused on “who” should carry out this review (a European court, national courts or both), “what” needs to be reviewed, and “when” this review should take place.

In the third session, dedicated to procedural guarantees, emphasis was placed on the fundamental importance of the level of protection of procedural rights and guarantees in OLAF investigations, which is not without weaknesses, and therefore in need of further clarification and strengthening. Legal issues concerning procedural safeguards emerging in OLAF investigations would also apply to EPPO investigations. Most speakers agreed that the added value represented by the institution of European Public Prosecutor’s Office and the powers conferred upon it should not come at the expense of fundamental rights.

The credibility of the European Public Prosecutor and the trust placed in it are based precisely on the strengthening of procedural guarantees. For this reason, too, according to some speakers, the Council’s proposal does not appear to be satisfactory. The compromise needed in order to reach an agreement on the Regulation Establishing the European Public Prosecutor’s Office should not lead to a lessening of guarantees.

The difficulties in reaching an agreed solution are known to all. The use of enhanced cooperation, provided in Article 86 TFEU, might seem a likely solution, but it would still leave open the question of relations with Member States that do not participate in it and it seems that the Luxembourg Presidency still wants to try and find a shared solution. The debate that animated the conference has certainly contributed to a better understanding of the complex and delicate issues discussed.

A heartfelt thanks goes to all those who, with their reflections and speculations, contributed to the success of the event and this publication