VERFASSUNGSBLOG :Legal Requirements for the EU-Turkey Refugee Agreement: A Reply to J. Hathaway

(ORIGINAL PUBLISHED HERE )

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There are many open questions and objections against the EU-Turkey deal on an agreement whose details are yet to be negotiated to manage the Syrian refugee crisis. In particular on the reciprocity part: could the agreement as an easily available tool by Turkey to blackmail visa liberalization and progress in the EU Accession negotiations? How will the EU make sure the proper treatment of all returnees? How is the resettlement of   refugees from Syria to the EU (and to Germany) going to take place?

James Hathaway on this blog has listed three legal requirements for the agreement to be legal. In my view none of these are likely to block an agreement.

Ad 1: James Hathaway argues that any individual is entitled to decide for him/herself where to seek recognition as a refugee and therefore efforts to preclude would-be refugees to reach Greece would be in violation of the Convention.

This conclusion cannot be derived from the Convention. True, nobody can be forced to file an asylum claim in a specific country. That does not mean however that there is a freedom of choice where to seek protection.   The Convention does not provide a right of admission to those who have not yet reached a border where entry may be requested for the purpose of international protection.

The only individual right is the right not to be refouled (expelled or returned) to a country of persecution or inhuman or degrading treatment. There is no obligation to assist in reaching a border post or point of entry for the purpose of filing an asylum claim. That applies definitely for any action outside the Greek territory. But even within the highly controversial territorial waters off the Greek island it is at least doubtful whether EU cooperation with Turkey in establishing a more effective border control to prevent those not in possession of the necessary documents to enter the EU triggers the application of the Geneva Convention.

Art.31 of the Convention does not support such an assumption providing for impunity for those coming directly from a territory where their life or freedom was threatened – which is clearly not the focus of the draft agreement. Even the EctHR’s Hirsi judgment of 2012 cannot be interpreted as a right to admission to the EU for the purpose of filing an asylum application. Non refoulement is clearly limited to an exercise of quasi territorial jurisdiction and the obligation not to transport boat refugees to a country where they would in all likelihood face inhuman treatment as a direct result of such action.

Ad 2: James Hathaway argues that Turkey would have to withdraw its geographical limitation. This is clearly not the legal position of the EU and neither a requirement of international refugee law for the application of a safe third country concept. Art. 38 of the Procedures Directive 2013/32 defines the concept of safe third country explicitly with regard to the material obligations of the Convention including non-refoulement and receiving protection “in accordance with the Convention”.

One may argue on the interpretation of this provision. It is fairly clear however from the comparison with the “concept of European safe third country” in Art 39 that a ratification without a geographical limitation is not required. Nevertheless, Turkey must meet in substance the material standards of the Convention which may raise issues, particularly with regard to non-Syrian refugees under the new Turkish legislation of 2014 (see N. Eksi, The New Turkish Law on Foreigners and International Protection , 2014, p.83 ff).

Ad 3: The third legal barrier exposed by Hathaway is thejurisprudence of the European Court of Human Rights on the prohibition of collective expulsion of aliens under Art. 4 Prot.No. 4.

Hathaway mentions slight doubts on the reasonableness of this jurisprudence with respect to responsibility sharing agreements. Hathaway is right. But not only with respect to the requirement of an individuated assessment of an applicant’s circumstances to such agreements. The Courts application of the prohibition of collective expulsion to border control and rejection largely ignores the wording and purpose of the provision.

Expulsion affects the situation of aliens who have already acquired some kind of a residential or at least tolerated status. It is reasonable and at the heart of Art. 4 that a decision of removal must take into account the individual circumstances of each case. Rejection of persons at the border or prevention of illegal entry by return is a completely different matter.   It does not generally require an individual examination of the circumstances of each case. If a question of non-refoulement arises it is the non-refoulement clause and its procedural implications which regulates the procedural requirements rather than Art. 4.

Yet, even if Hirsi and subsequently Klaifia v. Italy (Nr. 16483/12 ) are taken at its face value it is highly doubtful whether the Court will strike down a EU-Turkey agreement on responsibility sharing for potential asylum seekers on the ground that it does not provide for an indiduated assessment of all circumstances of a case – provided that Turkey can be reasonably assumed to comply with its obligation to grant protection to all persons returned (rather than expelled) under the agreement.


SUGGESTED CITATION  Hailbronner, Kay: Legal Requirements for the EU-Turkey Refugee Agreement: A Reply to J. Hathaway, VerfBlog, 2016/3/11, http://verfassungsblog.de/legal-requirements-for-the-eu-turkey-refugee-agreement-a-reply-to-j-hathaway/, DOI: https://dx.doi.org/10.17176/20160311-151627.

VERBASSUNGSBLOG: Three legal requirements for the EU-Turkey deal

An interview with JAMES HATHAWAY

The EU and Turkey seem to be heading towards an agreement on how to manage the Syrian refugee issue between them, including Turkey taking back refugees who entered the EU by boat from Greece and a flexible quota of refugees eligible for legal resettlement to the EU. Is this good or bad news?

As such, a system under which place of arrival is divorced from place of protection could be both legal and a good thing — if it enables those to be resettled to be chosen on the basis of eg. relative urgency of need, rather than just on the basis of who can pay for a smuggler. And to the extent that smugglers are no longer needed to reach solid protection, that is also a positive thing.

Some decry that this „one in, one out“ model treats people like cattle. How would such an agreement fit in with a system of individual asylum rights?

An individual is entitled to decide for himself where to seek recognition of his refugee status.  For this reason, undifferentiated efforts to deter groups known to include refugees — for example, NATO action “against smugglers”, to the extent it precludes refugees from reaching a state party — are in breach of the Refugee Convention. (And refugees are explicitly exempt from penalties for unlawful arrival). But the right to decide where to seek recognition of refugee status does not entail the right to choose where international refugee protection is to be enjoyed.  States enjoy substantial latitude to require a refugee to benefit from protection in a state not of the refugee’s choosing.

Is Turkey with its dismal human rights track record and questionable refugee protection standards a legally possible candidate for such an agreement in the first place?

There are three requirements that must be met for a state lawfully to remove a refugee to accept protection in a country not of his choosing: First, the destination state must be a state party to the Refugee Convention.  Second, it must ensure that refugees are in fact recognized.  And third, the destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).

Let’s start with the Convention. Turkey is a member state, isn’t it?

On this front, Turkey — despite appearances to the contrary — does not yet comply.  It has entered a geographical limitation on its accession to the Refugee Convention, under which it assumes no obligations to non-European refugees.  Put simply, obligations cannot lawfully be shared with a state which has none — and in this case, Turkey has none towards relevant refugee populations. Turkey would have to withdraw its geographical limitation. And since it in fact receives millions of non-Europeans, this may be politically feasible — especially when 6 billion Euros are involved.

What about the refugee status? Would Turkey have to recognize those who are returned from Greece as refugees?

Turkey must either recognize the refugee status of those returned or have a fair and effective process in place. UNHCR involvement in the process or an EU support office overseeing the refugee status determination process might enable this requirement to be met.  Or Turkey might simply agree — as many less developed countries do — to treat those returned from the EU as refugees without need of formal status assessment.

So, unless Turkey factually meets the standards of the Refugee Convention, legally there can’t be any removal of refugees to Turkey?

The destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).  As senior courts have made clear, this is a matter of enforceable facts on the ground — not promises.  To date Turkey has a mixed, but largely positive record in this regard.  A process of international oversight and effective remedies for breach would be a plausible answer to the concern.

The resettlement quota seems to be only for Syrians. What about the Afghans, Iraqi and Eritreans and others who might also be in need of asylum and, in fact, entitled to get it?

Art. 3 of the Refugee Convention prohibits “discrimination” between and among refugees on the basis of country of nationality.  To the extent that all refugees are returned by the EU to Turkey but only Syrians — not eg. the many Iraqis and Afghans who also have solid refugee claims — can benefit from EU protection via resettlement, there is a potential issue of discrimination.  But if shown to be “objective and reasonable,” the differentiation is not discrimination, and thus not unlawful — and this might be shown.

So, under international refugee law the path taken by Turkey and the EU is viable?

Not necessarily. The more critical challenge arises from the European Convention on Human Rights.  While under the Refugee Convention there is no protection from “expulsion” that does not involve “refoulement” to the county of origin until an individual is admitted to a refugee status determination procedure (and hence is “lawfully present”), the ECHR disallows “collective expulsion of aliens.”  Perhaps unwittingly (and perhaps unwisely) the jurisprudence under the ECHR has found that even if it might otherwise be thought objective and reasonable, a “collective” procedure to expel non-citizens that does not take include a means to take account of individuated circumstances  is in breach of the ECHR.  My own view is that the jurisprudence to date did not consider systemic responsibility-sharing systems of the kind that meet the three criteria mentioned above, and might well have evolved differently had the cases involved a clearly protection-oriented scheme.  But (perhaps regrettably) the language of the case law to date does indeed seem to require an individuated assessment before expulsion of aliens is lawful.  In this sense, the ECHR seems to take away the flexibility that the Refugee Convention intended that states should enjoy in ensuring that all refugees get protection.

Questions: Maximilian Steinbeis


SUGGESTED CITATION  Hathaway, James C.: Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY, VerfBlog, 2016/3/09, http://verfassungsblog.de/three-legal-requirements-for-the-eu-turkey-deal-an-interview-with-james-hathaway/, DOI: https://dx.doi.org/10.17176/20160309-164409.

Time to Save the Right to Asylum

ORIGINAL PUBLISHED HERE 

(ECRE Memorandum to the European Council Meeting 17 18 March 2016)

Ahead of the European Council Summit meeting of 17 and 18 March 2016, ECRE urges Heads of State or Government to assume political leadership and pave the way for a concerted EU response to what primarily continues to be a refugee crisis and not only a migratory phenomenon. Such a response must be based on the principle of solidarity and fair sharing of responsibility and respect for human rights. Current fragmented national approaches have added to the suffering of refugees and migrants arriving in the EU and have resulted in the erosion rather than restitution of the rule of law in the EU.

According to the latest available UNHCR figures over 130.000 persons arrived by sea in the EU in the two first months of 2016 alone, the vast majority (123.000) have arrived in Greece, with 88% coming from the world’s top 10 refugee-producing countries, including 45% from Syria, 25% from Afghanistan and 16% from Iraq. Recent arrivals also show a shift in the age and gender composition towards 54% women and children.1 The increase in the number of arrivals in the EU in 2015 and 2016 is creating huge challenges for the EU and its Member States. However, these numbers must be put into perspective intensifying conflicts in Syria as well as other countries such as Afghanistan and Iraq resulting in an unprecedented 60 million persons being forcibly displaced worldwide today. Moreover, despite the sharp increase of arrivals of asylum seekers and refugees in Europe, the fact remains that the vast majority of refugees continue to be hosted in other regions of the world.2 In this regard the EU has a legal and moral obligation to enhance the global protection regime by increasing the protection space within the EU as well as in these regions and uphold the right to asylum as laid down in Article 18 EU Charter of Fundamental Rights.

With this memorandum, ECRE urges the European Council to revisit the principles for collaboration with Turkey to ensure compliance with fundamental rights and presents recommendations for the development of rights-based solutions with regard to the situation of asylum seekers and refugees in Greece and access at the EU’s external borders, safe and legal channels to protection in the EU and the broader reform of the CEAS, including the reform of the Dublin system and the role of EU agencies.

  1. Revisit the EU-Turkey deal to ensure compliance with fundamental rights

At their extraordinary meeting with Turkey, Heads of State or Government have agreed on a set of principles providing the framework for EU-Turkey cooperation in managing the refugee and migrant flows to Europe and Turkey.3 ECRE strongly opposes the approach taken which, if implemented, risks violating international refugee law, EU asylum law and the EU Charter of Fundamental Rights, and would lead to a policy of containment and chain refoulement of persons in need of protection.

First, a policy of blanket returns of all irregular migrants arriving in Greece’’ is incompatible with EU and international law and would be in complete dereliction of the principle of non refoulement. Those expressing the wish to apply for international protection have to be given access to the asylum procedure and a full examination of their claim in accordance with Article 6 recast Asylum Procedures Directive. The concerns in relation to a denial of access to the asylum procedure and potential refoulement should be read in light of recent information published by ECRE highlighting the limited capacity of the registration system in Greece. As ECRE has argued before, the examination of asylum claims cannot be based on the assumption that Turkey is a safe third country. Turkey does not comply with the criteria listed in Article 38 of the recast Asylum Procedures Directive which requires   that   applicants   must   be   protected   from   refoulement   in   the   “safe   third   country”   and   that   the possibility exists to request and receive protection in accordance with the Refugee Convention.4 Currently, Turkey still applies a geographical limitation to the 1951 Convention, which means that only persons fleeing events occurring in Europe can obtain refugee status. Though the Law on Foreigners and International Protection provides for a status of “conditional refugee” to those coming from non-European countries, this status only allows a person to temporarily reside in Turkey, while awaiting for resettlement, and does not automatically guarantee access to the labour market.

Moreover, the conditions in Turkey do not guarantee that fundamental rights of refugee and migrants are respected in Turkey. Asylum seekers from nationalities other than Syrian are subject to a largely dysfunctional international protection procedure. Despite recent reforms, the Directorate General for Migration Management lacks capacity to process asylum applications while numerous barriers to state-funded legal aid, coupled with resource constraints on NGOs, leave asylum seekers without legal representation and advice. Moreover, whereas the country received approximately 130.000 asylum applications from non-Syrians in 2015, to date the total reception capacity for these applicants is  850  places.5

Moreover, and also applicable to those not applying for international protection, EU Member States have a positive obligation to ensure that return to Turkey complies with the principle of non refoulement and the prohibition of collective expulsion, which necessitates a case-by-case assessment of such risk.

Second, resettling one Syrian to the EU for every Syrian readmitted from the Greek islands to Turkey is as Kafkaesque as it is legally and morally wrong. A strict reading of the plan outlined on 7 March 2016 would effectively make the number of resettlement places dependent on the number of Syrians who risk their lives in the Aegean and are finally readmitted to Turkey. In practice, this may work as an incentive for Turkey to have as many Syrians crossing irregularly and readmitted in order to have a higher number of refugees resettled out of Turkey. Conversely, keeping readmission numbers low either by preventing as much as possible arrivals of Syrians in Greece or refraining from effecting readmission, would result in a smaller resettlement commitment from the EU side. Moreover, the engagement of Member States to resettle out of Turkey should be guaranteed. Without such commitment, the plan outlined on 7 March may simply become a mechanism for readmission back to Turkey. Combined with a renewed emphasis on restriction of entry to Turkey from other countries by imposing visas to nationalities that previously did not require one, and plans for readmission agreements between Turkey and 14 countries of origin, as envisaged under the Joint EU-Turkey Action Plan, this reveals a policy of containment in Turkey on behalf of the EU, which can trigger the complicity of Member States in chain refoulement.

ECRE urges the European Council not to link resettlement to readmission but preserve resettlement as one of the durable solutions to refugee displacement and an unconditional instrument of international solidarity. The European Council should rather establish a comprehensive approach that upholds the right to asylum in the EU, provides substantial support to refugee livelihoods, education and the capacities of local actors and communities in Turkey through the recently agreed Refugee Facility. This should be accompanied by large scale resettlement and/or humanitarian admission programmes from Turkey, Jordan and Lebanon, which currently host the vast majority of the displaced from the Syria conflict. UNHCR has identified that 10% of the over 4 million Syrian refugees displaced by the conflict are currently in need of resettlement.6 The European programmes should be structured and financially supported to incrementally cover half of that number by 2020.7

  1. Assist Greece by responding to the emergency with concrete solidarity

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Detention of asylum-seekers: the first CJEU judgment

Original published on EU LAW ANALYSIS (Wednesday, 9 March 2016)

by Steve Peers

One of the most controversial aspects of immigration and asylum law is the detention of migrants: people who have broken no criminal law (other than, possibly a criminal law about migration control) but who are detained during their asylum application, or pending their removal from the country. The EU has had rules on detention of irregular migrants for some time, in the Returns Directive (on the CJEU’s interpretation of those rules, see my journal article here).  But it has only recently had rules on the detention of asylum-seekers, in the second-phase Directive on the reception conditions for asylum-seekers. (The UK and Ireland have opted out of both Directives).

Recently, in the JN judgment, the CJEU ruled for the first time on the interpretation of these new rules. In fact, this was the Court’s very first judgment on any aspect of the second-phase legislation, although it soon gave another judgment (on the rights of people with subsidiary protection, discussed here), and other cases are pending. The Court’s ruling addresses a number of key questions of interpretation of the detention rules, but left a number of issues open.

In general, the Court has limited the prospect of detaining asylum-seekers on grounds of ‘national security or public order’, and its ruling implicitly somewhat constrains the possibilities of detaining asylum-seekers on other grounds too. But in parallel to that, the judgment strengthens the rules in the Returns Directive on the detention and expulsion of irregular migrants. And the Court’s ruling is surprisingly open to the application of human rights ‘soft law’ as a means of interpreting EU law. Overall, while not mentioning the current ‘refugee crisis’, the judgment is an implied rebuff to those who would like to resort to extensive detention of asylum-seekers as a means to address that crisis.

Background

The first phase reception conditions Directive (adopted in 2003, applicable from 2005) said little about detention of asylum-seekers. While the subsequent Returns Directive did regulate detention of irregular migrants, the CJEU made clear inKadzoev and Arslan that those rules did not apply to asylum-seekers, because EU asylum legislation gives asylum-seekers the right to stay on the territory until a decision is made at first instance on their application, whereas the Returns Directive says that irregular migrants should be booted out as soon as possible. InArslan, the Court clarified the relationship between the two sets of rules: an irregular migrant detained under the Returns Directive could not simply escape from detention by applying for asylum. Essentially the JN judgment returns to the same issue, and asks the Court to reconsider its position in light of the more detailed rules on detaining asylum-seekers which now apply.

So what are those rules? In the second-phase reception conditions Directive, the previous ban on detaining people solely because they have applied for asylum is retained. The Directive then provides generally for detention of asylum-seekers if ‘necessary’ after ‘an individual assessment of each case…if other less coercive alternative measures cannot be applied effectively’. Detention is permitted ‘only’ on six grounds: (a) ‘in order to determine or verify [an asylum-seeker’s] identity or nationality’; (b) to ‘determine the elements on which’ the application is based ‘which could not be obtained in the absence of detention, in particular where there is a risk of absconding’; (c) in order to decide on entry onto the territory; (d) when the asylum-seeker is detained pursuant to a planned expulsion under the Returns Directive, and there are objective grounds to show that he or she applied for asylum only to ‘delay or frustrate’ expulsion, despite having had an opportunity to access the asylum procedure; (e) ‘when protection of national security or public order so requires’; or (f) in accordance with the Dublin III Regulation on allocation of asylum-seekers between Member States, which provides for detention if there is a ‘significant risk of absconding’ before a Dublin transfer is carried out.

The grounds for detention must be ‘laid down in national law’, which must also lay down rules on alternatives to detention. There are detailed rules on procedural guarantees as regards detention, and on the conditions of detention. Those procedural guarantees and detention condition rules also apply to Dublin cases, and the Dublin Regulation moreover sets out precise rules on the length of detention. The CJEU has been asked to interpret the ground for detention in the Dublin III Regulation, in the pending Al Chodor case.

The judgment

Mr JN had made three prior applications for asylum. They were all unsuccessful, but nevertheless he was not removed from Dutch territory. Over a period of 20 years, he accrued more than twenty convictions for criminal offences. The case did not concern detention for those criminal convictions, as such detention falls outside the scope of the Directive (unless, arguably, the criminal conviction is related to immigration offences: more on that point below). Rather it concerned detention on grounds of ‘public order and national security’, which the Dutch government imposed in light of his criminal offences – but not as a penalty for them.

Obviously such detention is compatible in principle with the Directive, which expressly provides for detention on such grounds. So Mr. JN instead argued that the relevant provision in the Directive itself was invalid. It should be noted thatanother pending case asks the CJEU whether two other grounds for detention in the Directive are invalid: verification of identity or nationality, and determining the elements on which the application is based.

The Court began its analysis by reiterating its prior case law that the European Convention on Human Rights (ECHR), which includes rules on detention, does not bind the EU as such. Instead, it assessed the validity of the clause in the Directive in light of the EU Charter of Fundamental Rights – although this did entail some assessment of the validity of that clause in light of the ECHR as referred to in the Charter, as discussed below.

According to the Court, detention undoubtedly affects the liberty of the individual, as guaranteed by Article 6 of the Charter. So the question is whether this particular ground for detention was justified, in light of the general test for limiting Charter rights set out in Article 52(1) of the Charter. This test requires that limitations on Charter rights must: (a) be prescribed by law; (b) not infringe the essence of the right; (c) be aimed at protecting an objective of general interest, or the rights and freedoms of others; and (d) be proportionate – meaning that they are appropriate and necessary to achieve their objective.

Applying these tests, the Court first found that the possibility of detention on grounds of public policy or national security was prescribed by law, since it was set out in the Directive. It did not infringe the essence of the right to liberty, since it was based on individual conduct and applied in ‘exceptional circumstances’, circumscribed by the various general limits and guarantees relating to detention set out in the Directive. Detention on grounds of public order and national security meets a public interest, and moreover protects the right to ‘security’ of others.

The Court’s most detailed reasoning therefore concerned proportionality. Detention on public order or national security grounds was inherently ‘appropriate’ to the objective of ensuring public protection. It was ‘necessary’ for a number of reasons, which the Court elaborated in some detail. All restrictions on liberty have to be ‘strictly necessary’ and this particular ground to detain was ‘strictly circumscribed’ by the overall legal framework: detention on such grounds had to be ‘require[d]’; detention must be provided for in national law; the general limits and safeguards on detention in the Directive apply; the exception is limited by international human rights ‘soft law’; and the concepts of ‘public policy’ and ‘national security’ had to be narrowly interpreted.

The Court explored the latter two points further. As regards international human rights ‘soft law’, it noted that in the Commission’s original proposal for the Directive, it referred to a Council of Europe Recommendation on detention of asylum-seekers, as well as UNHCR guidelines on detention. It then applied some of the text of the latter guidelines: in particular detention of asylum-seekers must occur ‘only exceptionally’ in an ‘individual case’ as a ‘last resort’, where ‘necessary, reasonable and proportionate to a legitimate purpose’.

As for the detention grounds of ‘public policy’ and ‘national security’, the Court applied last year’s judgments in T and Zh and O (discussed here and here), in which it had ruled that ‘public policy’ exceptions in other EU immigration and asylum legislation had to be narrowly interpreted, consistently with the narrow definition of that exception in EU free movement law. In JN it said the same for the national security exception as regards detaining asylum-seekers, and furthermore as regards the grounds for entry bans longer than five years, as set out in the Returns Directive. So the exceptions apply only where there is a genuine criminal or security threat, not where there the authorities simply deem it expedient to detain people.

Next, the Court applied its interpretation of the Directive to the facts of this case. He was detained due to his prior offences and pending expulsion order, which was attached to a ten-year entry ban. Since entry bans for longer than five years can only be issued on grounds of a ‘serious threat to public policy…public security or national security’ it followed that detention could be ordered in the same circumstances – as long as proportionality was ‘strictly observed’ and those reasons are still valid.

The Court also made clear that the pending expulsion order could not lapse during consideration of JN’s asylum application. The national case law which provided for it to lapse had to be disapplied by the national court, in order to ensure the effectiveness of the Returns Directive (ie the expulsion of irregular migrants). So Mr JN was a sort of ‘Schrodinger’s migrant’: allowed to stay on the territory while his asylum application was considered (and so subject to the detention rules in the reception conditions Directive); but also simultaneously subject to an expulsion order under the Returns Directive, which was only temporarily suspended – and which continued to justify (in part) his detention under the formally distinct set of asylum rules.

Finally, the Court concluded by looking at the position under the ECHR, in the context of the Charter. The former was relevant to the latter because Article 52(3) of the Charter says that the ‘meaning and scope’ of Charter rights which ‘correspond’ to ECHR rights is the same as those ECHR rights.  However, the Court easily dismissed the ECHR argument by pointing out that in the recent judgment of the European Court of Human Rights (ECtHR) in Nabil v Hungary, an asylum seeker could still be detained pursuant to Article 5(1)(f) of the Convention (which allows detention ‘where action is being taken with a view to deportation’) because rejection of an asylum application would entail enforcement of an expulsion order. But the Court did refer to the safeguards in other ECtHR case law: there can be ‘no element of bad faith or deception by the authorities’, and detention must be proportionate.

Comments

As the CJEU’s first proper judgment on detention of asylum-seekers, the JN ruling may become seminal. That’s not because of the facts of this particular case: with three failed asylum applications and over twenty criminal convictions to his name, the grounds to detain Mr JN are stronger than they are for many other asylum-seekers. But much of what the Court said in its judgment has potentially wider impact.

I will analyse that possible impact from five angles: (a) the ‘public policy and national security’ ground of detention; (b) the application of other grounds for detention; (c) the Court’s use of ‘soft’ human rights law; (d) the interpretation of the Returns Directive; and (e) the role of law in the development of the EU’s asylum regime more generally.

The ‘public policy and national security’ ground of detention

The Court made clear that the public policy and national security grounds for detention must be narrowly interpreted, and interpreted consistently with EU free movement law. Mr JN’s detention was justified because of his prior criminal offences in conjunction with the underlying expulsion order. But are these tests cumulative or alternative? And are they exhaustive?

The Court does not address these questions. However, the requirement to interpret these grounds consistently with EU free movement law suggests that the two tests are exhaustive. Arguably criminal offences alone could justify detention, in light of the nature of this ground for detention. But the principle of proportionality must mean that detention would be harder to justify in the absence of an expulsion decision, and that the seriousness and number of the offences are also highly relevant. (Remember that detention under the Directive is distinct from detention ordered as a result of a criminal conviction, or pre-trial detention linked to the criminal proceedings).

Conversely, it seems unlikely that an expulsion decision alone could justify detention on this ground. If that were permitted, it would be too easy for Member States to justify the detention of almost all asylum-seekers, by issuing irregular migrants with expulsion orders as soon as they are apprehended, before they can apply for asylum. This would undercut the Court’s emphasis on the exceptional nature of detention of asylum-seekers. Furthermore, the Directive has a lex specialis on detaining asylum-seekers who had been subject to expulsion orders: the ‘last-minute application’ clause. If the drafters of the Directive had intended a broader possibility to detain asylum-seekers merely because they were subject to expulsion orders, they would have drafted that clause differently.

Other grounds for detention

While most of the JN judgment focusses on the particular ‘public policy and national security’ ground for detention of asylum-seekers, some of the Court’s reasoning casts light by analogy on the validity and interpretation of the other five detention grounds.

First of all, each of the other five grounds for detention of asylum-seekers restricts their liberty, so must be also justified under Article 52(1) of the Charter. Applying the Court’s analysis in the JN judgment by analogy, each of those other five grounds is ‘prescribed by law’, at least according to the CJEU’s approach to that concept. However, the other grounds are not so closely linked to individual conduct of the person concerned, although arguably the ‘last-minute application’ and Dublin III ‘serious risk of absconding’ ground have a closer link than the others (the Dublin III Regulation refers to ‘reasons in an individual case’ to suggest that an asylum-seeker may abscond). Nor is it clear how the ‘exceptional circumstances’ concept applies to the other grounds, although they are all also subject to the general limits and guarantees relating to detention set out in the Directive.

The public interest arguments for the other grounds of detention are less obvious, although the Court could probably find them: the efficiency of the asylum system, and (as regards the entry control and ‘last-minute application’ grounds) immigration control (see the Schwarz judgment by analogy). But the restrictions on liberty are not so obviously appropriate as is the case for public policy and national security (except as regards the ‘last-minute application’ clause, provided that there was an effective opportunity to apply for asylum).

As for necessity, the Court applied the ‘strictly necessary’ rule to all deprivations of liberty. Furthermore, the other grounds for detention are also subject to the general limits and safeguards set in the Directive, and the rule that detention must be provided for in national law. However, not all of the specific features which the Court discussed in JN apply to the other grounds for detention: there is no obligation that detention on the other grounds be ‘required’, and the interpretation of those other grounds under EU law and international human rights soft law will necessarily be different. That brings us neatly to the Court’s innovative use of that soft law.

The Court’s use of ‘soft’ human rights law

First of all, the Court’s use of international human rights ‘soft law’ is remarkable in itself. It’s only taken account of such rules once before in the immigration and asylum context: the El Dridl case, where the preamble to the Returns Directive referred to a Council of Europe Recommendation on detention of irregular migrants. But in JN, the explanatory memorandum to the original proposal is enough to trigger incorporation of the soft law into the Court’s interpretation of the Directive.

It’s not clear if this may have broader implications beyond the reception conditions Directive. I’ve checked the original proposals for the other second-phase asylum laws, and none of them refer to international soft law as far as I can see. (But note that the preambles to the legislation do refer to the Geneva Convention on refugee status, as well as the UN Convention on the Rights of the Child).

However, it does have a number of implications for the interpretation of the reception conditions Directive. I have read through both ‘soft law’ measures invoked by the Court, and noted some key points where they could be useful in interpreting the Directive. For the sake of readability, I have put some of the detail in an Annex to this blog post. But here are the highlights.

The soft law gives more precise explanations for detention on grounds of determining nationality or identity, or to determine elements of the claim. A crucial point here is a detailed interpretation of Article 31 of the Geneva Convention, which states that refugees ‘coming directly’ from persecution cannot be penalised for irregular entry if they breach immigration law for ‘good cause’ and contact the host State’s authorities ‘without delay’. This is a big issue in practice.

Two years ago, in its judgment in Qurbani (discussed here), the CJEU said it would not interpret Article 31 of the Convention, unless EU legislation referred to it. Well, the preamble to the second-phase reception conditions Directive does refer to it, in the context of detention (so does the Dublin III Regulation, and EU anti-smuggling law). Since criminal penalties for irregular entry are affected by the Returns Directive (according to the CJEU’s case law), it must follow that they are also affected by EU asylum law, a fortiori because the EU legislators expressly refer to Article 31 of the Convention.

What does this mean on the ground? First of all, the UNHCR guidelines say that asylum-seekers are covered by Article 31, even if their refugee status has not yet been established. Next, the 1999 version of the guidelines say that ‘coming directly’ also covers cases where asylum-seekers travelled through other countries. The ‘good cause’ rule must be interpreted in context, and there is no strict time limit for contacting the authorities. Between them, these interpretations of Article 31 should limit asylum-seekers’ criminal convictions for irregular entry considerably. In any event, EU legislation and case law says that asylum-seekers are entitled to stay on the territory and are outside the scope of the Returns Directive since they cannot be considered irregular; subjecting them to a criminal prosecution for irregular entry would directly contradict this.

Furthermore, the soft law is relevant not only to the grounds for detention, but also alternatives to detention, judicial review of and the conditions for detention. On that latter point, it mentions the practice of religion in detention, as well as a broader measure of contact with the outside world. Asylum-seekers should have a complaints procedure concerning detention conditions. There are more details on detention of vulnerable persons.

On that point, I can never pass on an opportunity to comment on the quite obnoxious derogations permitted in the Directive, allowing Member States to waive the requirements for separate accommodation for detained families and detaining women separately from unrelated men, in ‘duly justified’ cases at the border. In light of the Charter rights to privacy, the rights of the child and the EU’s imminent signature of the Council of Europe Convention on violence against women (on which, see here), these derogations are surely either invalid or can only apply in cases of force majeure.

Interpretation of the Returns Directive

The Returns Directive says nothing explicitly on the lapse of return decisions. This judgment is the first time the CJEU has ruled on the issue. While the Court only addresses the specific point of return decisions lapsing due to an asylum application, it might be argued by analogy that the lapse of return decisions in other circumstances is also incompatible with the Returns Directive. Although Member States are allowed to set higher standards than the Returns Directive, that only applies if those standards are still ‘compatible’ with the Directive. As we saw in theZaizoune judgment (discussed here), such higher standards cannot amount to a waiver of the obligation to return people. It’s implicit in the JN ruling that equally it’s not compatible with the Directive for return decisions to lapse as soon as an asylum application is made.

The role of law in the development of the EU’s asylum regime

The JN ruling came as the EU took further measures to reduce the numbers coming to or staying on the territory – most notably by reaching a controversial arrangement with Turkey (on which, see here). Overall, the judgment sends a clear signal that the CJEU is going to assert its legal authority to ensure that measures taken to deal with the refugee and migration crisis are compatible with human rights, in particular as regards asylum-seekers – although conversely the Court is keen to strengthen the obligation to expel those who have not established any need to stay.

More broadly, the EU’s refugee policies are obviously in a state of deep crisis. Rather than leave the issue entirely to populists at the EU or national level, it would be better for the EU ask a panel of respected international experts to recommend (quickly) how the EU, in the wider international context, should deal with the crisis. I would nominate (say) Mary Robinson, David Miliband, Madeline Albright and Carl Bildt for this task. In any event, we cannot go on as we are: the EU needs an asylum policy that is simultaneously fair, humane, realistic and coherent; but it is falling far short of that at the moment.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: UNHCR, B. Szandelszky

Annex

Council of Europe Committee of Ministers Recommendation

Point 1 – the definition of ‘detention’ is taken implicitly from ECHR case law, and is more precise than in the Directive

Point 3 – a general provision says ‘the aim [of detention] is not to penalise asylum-seekers’. The ground of detention to determine nationality or identity is explained in more detail than under the Directive. It applies ‘in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state’. The ground of detention to determine elements of the asylum claim is less detailed than under the Directive, which contains the following additional words: ‘in particular where there is a risk of absconding of the applicant’.

There is no parallel to two of the grounds for detention under the Directive: under the Dublin process (ie where there is a ‘significant risk of absconding’ during that process); and where there is an asylum application purely to forestall an expulsion decision, if the asylum-seeker had previously had an opportunity to apply for asylum.

Point 4 – says there must be a ‘careful’ examination of the grounds for detention in individual cases, and detention shall be ‘non-arbitrary’.

Point 5 – discusses grounds for judicial review, which are not expressly mentioned in the Directive. If a maximum detention duration has not been provided for by law, the duration of the detention should form part of the review by the above-mentioned court (see the Mahdi judgment on the Returns Directive by analogy).

Point 6 – ‘Alternative and non-custodial measures…should be considered beforeresorting to measures of detention’. The Directive does not state this expressly.

Point 7 – Measures of detention should not constitute an obstacle to asylum seekers being able to submit and pursue their application for asylum.

Point 8 – Asylum applications from persons in detention should be prioritized for the purposes of processing. This is especially the case where a person is held in detention because of reasons resulting from the law pertaining to foreigners.

Conditions of detention

Point 15 – Detained asylum seekers should be allowed to practice their religion and to observe any special diet in accordance with their religion.

  1. Asylum seekers should be allowed to contact and, wherever possible, receive visits from relatives, friends, social and religious counsellors, non-governmental organisations active in the field of human rights or in the protection of refugees or asylum seekers, and to establish communication with the outside world. Note that this is wider than Article 10(4) of the Directive.
  2. Asylum seekers should be guaranteed access to a complaints mechanism concerning the conditions of detention. This issue is not mentioned in the Directive.
  3. If minors are detained, they must not be held under prison-like conditions…If [placing outside detention] proves impossible, special arrangements must be made.

UNHCR guidelines

Guideline 2 – Interprets Article 31 of Geneva Convention – also referred to in preamble to the Directive. Refers also to UNHCR Executive Committee conclusions for more on when detention is ‘necessary’ under Article 31 of the Convention

Article 31 applies also to asylum-seekers, not just recognised refugees; 1999 version of conclusions: (point 4) ‘coming directly’ clause also covers cases where the asylum seeker transited through other States on way to State where they are now present. No strict time limit to the phrase ‘without delay’. ‘Good cause’ – must look at all the circumstances

Guideline 3 – must consider alternatives to detention first – same as in CoE recommendation.

Grounds for detention (i) to prevent absconding (matches Dublin III Regulation to some extent); (ii) manifestly unfounded or abusive claims (no match with Directive); (iii) to verify identity or security; no reference to nationality (so not as complete a correspondence as CJEU suggests); (iv) elements of the claim – explained in detail ‘within the context of a preliminary interview’ (with further clarification); (v) public health (no match in the Directive); (vi) national security; or (vii) a ‘last minute’ application to frustrate expulsion (no match in the Directive)

Point (d) of Article 8(3) of the Directive doesn’t appear here; ‘procedure to enter the territory’ does not apply.

General rule – cannot use detention as a deterrent, or to dissuade continuing with claims; not punitive or disciplinary, or for breach of rules at reception centres or camps.

Guideline 4.3 – more detailed rules on alternatives to detention than in Article 8(4) of the Directive.

Guideline 5 – detention cannot be discriminatory

Guideline 6 – there must be time limits on detention

Guideline 7(iv) – right of asylum-seeker or lawyer to attend hearing re review of detention; 7(v) – authorities have burden of proof re detention; 7(vi) not an obstacle to pursue the asylum application (as in CoE recommendation).

Guideline 8 – like CoE Recommendation: religious diet, wider access to outside world; more details on basic necessities than in Directive (ie ‘dignity’); no prison uniforms or shackling; also refers to complaints procedure (like CoE Recommendation) but goes into further detail than that Recommendation

Guideline 9 – more details on vulnerable persons than in Art 11(1) of the Directive

The Council adopts the new Emergency support in case of crisis inside the EU

Only two days after the meeting of the Head of States and Governments the Coreper has already agreed with minor changes on the Commission proposal to make use of ECHO funds also inside the EU in case of emergencies or crisis such as the one faced by countries like Greece under the refugee pressure.

The Legal basis of the regulation is art 122 of the TFEU according to which :
1. Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.
2.Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision taken.

By the same token a specific Budget line has been created. According to Agence Europe the €300 million budget that Euro ECHO will be allocated in 2016 will be used to help Greece meet the pressing humanitarian needs (food, shelter, drinking water, medicines and other basic necessities) of the refugees within its borders. (EDC)

The text of the Regulation is as follows:

COUNCIL REGULATION 

of on the provision of emergency support within the Union

THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 122(1) thereof,
Having regard to the proposal from the European Commission,

Whereas:

(1)          Mutual assistance and support in the face of disasters is both a fundamental expression of the universal value of solidarity between people and a moral imperative, as such disasters may lead to a significant number of people being unable to meet their basic needs, with potential severe adverse effects on their health and lives.

(2)          The impact of both man-made and natural disasters within the Union is increasingly severe. This is linked to a number of factors, such as climate change, but also to other contributing external factors and circumstances which are unfolding in the Union’s neighbourhood. The migration and refugee situation currently affecting the Union is a notable example of a situation where, despite the efforts undertaken by the Union to address the root causes located in third countries, the economic situation of Member States may be directly affected.

(3)          This situation led the European Council, on 19 February 2016, to call upon the Commission to put in place the capacity to provide humanitarian assistance internally, in order to support countries facing large numbers of refugees and migrants.

(4)          Man-made or natural disasters may be of such a scale and impact that they can give rise to severe economic difficulties in one or several Member States. They can also occur in one or several Member States already facing severe economic difficulties for other reasons, with the result of exacerbating and aggravating even further the overall economic situation of the Member States concerned. In either case, the response capacity of the Member States concerned would be adversely affected, and the assistance and support being provided to people in need would, in turn, be negatively affected.

(5)          While the Union is already in a position to grant support of a macro-financial nature to Member States, and to express European solidarity to disaster-stricken regions through the European Union Solidarity Fund (EUSF) established by Council Regulation (EC) No 2012/2002[1], there is currently no appropriate instrument available at Union level to address on a sufficiently predictable and independent basis the humanitarian needs of disaster-stricken people within the Union, such as food assistance, emergency healthcare, shelter, water, sanitation and hygiene, protection and education. Mutual assistance can be offered under the Union Civil Protection Mechanism pursuant to Decision No 1313/2013/EU of the European Parliament and of the Council[2], but the operation of that Mechanism is based on voluntary contributions from Member States. There could also be assistance and support provided through existing Union policy and financing instruments, such as those aimed at establishing an area of freedom, security and justice in the Union. Any such assistance and support would, however, be accessory and ancillary to the pursuit of the principal policy objectives of those instruments and, therefore, be limited in its scope and scale.

(6)          It therefore seems appropriate for the Union to act in a spirit of solidarity to address the basic needs of disaster-stricken people within the Union, and to contribute to reducing the economic impact of those disasters on the Member States concerned.

(7)          Given the similarities in addressing the basic needs of disaster-stricken people within the Union through the provision of emergency support and in providing humanitarian aid to people affected by man-made or natural disasters in third countries, all operations under this Regulation should be conducted in compliance with internationally-agreed humanitarian principles. Those actions constitute measures appropriate to the economic situation of the Member States facing those difficulties and complementing Union action encouraging cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.

(8)          Given the need to act in a spirit of solidarity, the provision of emergency support under this Regulation should be financed by the general budget of the Union, as well as by contributions which may be made by other public or private donors.

(9)          The reimbursement of expenses and award of public procurement contracts and grants under this Regulation should be implemented in accordance with Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council[3], taking into account the specific nature of emergency support. It is therefore appropriate to provide that grants and public procurement contracts may be awarded directly or indirectly, and that grants may finance up to 100 % of the eligible costs and be awarded with retroactive effect. The Commission should be able to finance emergency support operations of any organisation which, independent of its legal nature, whether private or public, possesses the requisite experience and uses to that effect direct or indirect management, as appropriate.

(10)        Furthermore, it is appropriate to rely on organisations with which the Commission has concluded framework partnership agreements pursuant to Council Regulation (EC) No 1257/96[4], in light of the relevance of the experience acquired by those organisations in providing humanitarian aid in close coordination with the Commission. Wherever possible the involvement of local non-governmental organisations should be sought, via partner organisations with framework partnership agreements, in order to maximise synergies and the efficiency of any emergency support provided under this Regulation.

(11)        The financial interests of the Union should be protected by means of proportionate measures throughout the expenditure cycle, including the prevention, detection and investigation of irregularities, the recovery of funds lost, unduly paid or incorrectly used and, where appropriate, administrative and financial penalties in accordance with Regulation (EU, Euratom) No 966/2012.

(12)        This Regulation should lay down the basis for providing financial support in the event of natural or man-made disasters in respect of which, in a spirit of solidarity, the Union would be better placed than Member States, acting alone and in an uncoordinated manner, to mobilise appropriate levels of financing and use them to implement operations of a potentially life-saving nature in an economic, efficient and effective manner, thereby allowing a more effective action by reason of its scale and complementarity.

(13)        Since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(14)        The provision of emergency support under this Regulation should be aptly monitored, relying, where need be, on the most relevant expertise available at Union level. Furthermore, the overall implementation of this Regulation should be evaluated.

(15)        Given the urgency of the support needed, this Regulation should enter into force immediately,

HAS ADOPTED THIS REGULATION:

Article 1 Subject matter and scope

  1. This Regulation lays down the framework within which Union emergency support may be awarded through specific measures appropriate to the economic situation in the event of an ongoing or potential natural or man-made disaster. Such emergency support can only be provided where the exceptional scale and impact of the disaster is such that it gives rises to severe wide-ranging humanitarian consequences in one or more Member States and only in exceptional circumstances where no other instrument available to Member States and to the Union is sufficient.
  2. Emergency support provided under this Regulation shall be in support of, and complementary to, the actions of the affected Member State. To this end, close cooperation and consultation with the affected Member State shall be ensured.

Article 2 Activation of the emergency support

  1. The decision about the activation of the emergency support under this Regulation in case of an ongoing or potential disaster shall be taken by the Council on the basis of a proposal by the Commission, specifying where appropriate the duration of the activation.
  1. The Council shall immediately examine the proposal of the Commission referred to in paragraph 1 and shall decide, in accordance with the urgency of the situation, on the activation of the emergency support.

Article 3 Eligible actions

  1. Emergency support under this Regulation shall provide a needs-based emergency response, complementing the response of the affected Member States, aimed at preserving life, preventing and alleviating human suffering, and maintaining human dignity wherever the need arises as a result of a disaster referred to in Article 1.
  2. Emergency support, as referred to in paragraph 1, may include any of the humanitarian aid actions which would be eligible for Union financing pursuant to Articles 2, 3 and 4 of Regulation (EC) No 1257/96, and may consequently encompass assistance, relief and, where necessary, protection operations to save and preserve life in disasters or in their immediate aftermath. It may also be used to finance any other expenditure directly related to the implementation of emergency support under this Regulation.
  3. Emergency support under this Regulation shall be granted and implemented in compliance with the fundamental humanitarian principles of humanity, neutrality, impartiality and independence.
  1. The actions referred to in paragraph 2 shall be carried out by the Commission or by partner organisations selected by the Commission. The Commission may notably select, as partner organisations, non-governmental organisations, specialised services of the Member States or international agencies and organisations having the requisite expertise. In doing so, the Commission shall maintain a close cooperation with the affected Member State.

Article 4 Types of financial intervention and implementing procedures

  1. The Commission shall implement the Union’s financial support in accordance with Regulation (EU, Euratom) No 966/2012. In particular, Union financing for support actions under this Regulation shall be implemented by means of direct or indirect management in accordance with points (a) and (c), respectively, of Article 58(1) of that Regulation.
  2. Emergency support under this Regulation shall be financed by the general budget of the Union and by contributions which may be made by other public or private donors as external assigned revenue in accordance with Article 21(4) of Regulation (EU, Euratom) No 966/2012.
  1. Union financing for support actions under this Regulation to be implemented by means of direct management may be awarded directly by the Commission without a call for proposals, in accordance with Article 128(1) of Regulation (EU, Euratom) No 966/2012. To that effect, the Commission may enter into framework partnership agreements or rely on existing framework partnership agreements concluded pursuant to Regulation (EC) No 1257/96.
  2. Where the Commission implements emergency support operations through non-governmental organisations, the criteria concerning financial and operational capacity shall be deemed to be satisfied where there is a framework partnership agreement in force between that organisation and the Commission pursuant to Regulation (EC) No 1257/96.

Article 5 Eligible Costs

  1. Union financing may cover any direct costs necessary for the implementation of the eligible actions set out in Article 3, including the purchase, preparation, collection, transport, storage and distribution of goods and services under those actions.
  2. The indirect costs of the partner organisations may also be covered in accordance with Regulation (EU, Euratom) No 966/2012.
  1. Union financing may also cover expenses pertaining to preparatory, monitoring, control, audit and evaluation activities which are required for the management of the emergency support to be provided under this Regulation.
  2. Union financing for emergency support actions under this Regulation may cover up to 100 % of the eligible costs.
  3. Expenditure incurred by a partner organisation before the date of submission of an application for funding may be eligible for Union financing.

Article 6 Complementarity and consistency of Union action

Synergies and complementarity shall be sought with other instruments of the Union, in particular with respect to those instruments under which some form of emergency assistance or support may be offered, such as Regulation (EU) No 661/2014 of the European Parliament and of the Council[5], Decision No 1313/2013/EU, Regulation (EC) No 1257/96, Regulation (EU) No 223/2014 of the European Parliament and of the Council[6], Regulation (EU) No 513/2014 of the European Parliament and of the Council[7], Regulation (EU) No 514/2014 of the European Parliament and of the Council[8], Regulation (EU) No 515/2014 of the European Parliament and of the Council[9] and Regulation (EU) No 516/2014 of the European Parliament and of the Council[10].

Article 7 Protection of the financial interests of the Union

  1. The Commission shall take appropriate measures ensuring that, when actions financed under this Regulation are implemented, the financial interests of the Union are protected by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by the recovery of the amounts wrongly paid and, where appropriate, by effective, proportionate and dissuasive administrative and financial penalties.
  2. The Commission or its representatives and the Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors, who have received Union funds under this Regulation.
  3. The European Anti-Fraud Office (OLAF) may carry out investigations, including on‑the‑spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013[11] of the European Parliament and of the Council and Council Regulation (Euratom, EC) No 2185/96[12] with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or grant decision or a contract funded under this Regulation.
  1. Without prejudice to paragraphs 1, 2 and 3, contracts and grant agreements as well as agreements with international organisations and Member States’ specialised services, resulting from the implementation of this Regulation shall contain provisions expressly empowering the Commission, the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

Article 8 Monitoring and evaluation

  1. Actions receiving financial support under this Regulation shall be monitored regularly. At the latest 12 months after the activation of the emergency support for a specific situation in accordance with Article 2, the Commission shall present a report to the Council and, where appropriate, proposals to terminate it.
  2. By … [OJ: insert date three years after the date of entry into force of this Regulation], the Commission shall submit an evaluation of the operation of this Regulation to the Council, together with suggestions for the future of this Regulation and, where appropriate, proposals to amend or terminate it.

Article 9 Entry into Force and activation

  1. This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
  1. The Council hereby decides to activate the emergency support under this Regulation as of the day of its entry into force for the current influx of refugees and migrants into the Union, for a period of three years.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

NOTES

[1]           Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund (OJ L 311, 14.11.2002, p. 3).
[2]           Decision No 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism (OJ L 347, 20.12.2013, p. 924).
[3]           Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).
[4]           Council Regulation (EC) No 1257/96 of 20 June 1996 concerning humanitarian aid (OJ L 163, 2.7.1996, p. 1).
[5]           Regulation (EU) No 661/2014 of the European Parliament and of the Council of 15 May 2014 amending Council Regulation (EC) No 2012/2002 establishing the European Union Solidarity Fund (OJ L 189, 27.6.2014, p. 143).
[6]           Regulation (EU) No 223/2014 of the European Parliament and of the Council of 11 March 2014 on the Fund for European Aid to the Most Deprived (OJ L 72, 12.3.2014, p. 1).
[7]           Regulation (EU) No 513/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for police cooperation, preventing and combating crime, and crisis management and repealing Council Decision 2007/125/JHA (OJ L 150, 20.5.2014, p. 93).
[8]           Regulation (EU) No 514/2014 of the European Parliament and of the Council of 16 April 2014 laying down general provisions on the Asylum, Migration and Integration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ L 150, 20.5.2014, p. 112).
[9]           Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing, as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC (OJ L 150, 20.5.2014, p. 143).
[10]         Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC (OJ L 150, 20.5.2014, p. 168).
[11]         Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).
[12]         Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on‑the‑spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

La Marche turque : quand l’Union sous-traite le respect de ses valeurs à un Etat tiers

ORIGINAL PUBLISHED ON CDRE SITE (9 MARS 2016)

 par Henri Labayle, CDRE, et Ph. De Bruycker, Omnia

 

Le Conseil européen réuni le 7 mars était supposé examiner l’état d’avancement du Plan d’action entre l’Union européenne et la Turquie, conclu en novembre 2015. L’idée était que, faute de résultats probants, d’autres mesures soient arrêtées. L’arrivée d’une moyenne de 2000 personnes par jour en Grèce depuis le début du mois de janvier plaidait en ce sens.

Pour certains Etats membres, le «Plan B » consistait à fermer les frontières extérieures de l’espace Schengen, quitte à plonger la Grèce dans une crise absolue. Le président du Conseil européen y était favorable puisqu’un projet de conclusions du Conseil ayant fuité à la fin du week-end et largement repris dans la presse faisait état d’une « fermeture de la route des Balkans ».

La « Déclaration » du Conseil européen renvoyant la solution finale de la question à une dizaine de jours n’en fait plus mention. Son objectif affiché est de démontrer que l’arrivée irrégulière ne donne plus accès à l’espace Schengen et qu’il y existe au contraire un chemin légal pour accéder à l’asile dans l’UE, avec le concours de la Turquie. L’examen de son contenu démontre en réalité l’ampleur des dysfonctionnements de la gestion institutionnelle de la crise des migrants (1), traitement que la proposition d’un nouveau principe de répartition des réfugiés (« 1 pour 1 ») ne va pas améliorer (2), a fortiori si la perspective de la fermeture des frontières extérieures de la zone Schengen se confirme (3).

1. Le délabrement du traitement institutionnel de la crise

Rarement, le désordre institutionnel de l’Union aura été aussi apparent que dans son traitement de la crise migratoire qui sévit depuis près d’un an. Outre l’incapacité de l’Union à appliquer ses propres décisions, dans l’indifférence générale, trois illustrations en attestent.

a. le désaveu du Président du Conseil européen

Comparer le texte du projet de conclusions diffusées dans la presse la veille du sommet à celui, définitif, de la « Déclaration » des chefs d’Etat et de gouvernement révèle les désaccord entre les Etats membres au sein du Conseil européen et, plus précisément, le décalage des points de vue entre son président et la chancelière allemande.

Aligné, comme il semble imaginer que c’est là sa fonction depuis sa nomination, sur la position « dure » des pays du groupe de Visegrad dont il est issu, le président du Conseil européen a toujours prôné, comme seule issue, un contrôle des frontières extérieures sans failles. Il pensait réunir un consensus quant à la détermination des Etats « to get back to a situation where all Members of the Schengen area fully apply the Schengen Borders Code, while taking into account the specificities of the maritime borders, and to end the wave-through approach. Irregular flows of migrants along the Western Balkans route are coming to an end; this route is now closed. The EU will stand by Greece in this difficult moment and will do its utmost to help manage the situation that has arisen as a consequence of this development ».

Passant ainsi la situation grecque par pertes et profits malgré la gravité de sa situation économique, il s’est heurté immédiatement à la détermination inverse de l’Allemagne, peu désireuse d’avaliser les comportements unilatéraux des Etats situés au long de cette route et notamment de l’Autriche. Dès avant le Conseil européen, la chancelière faisait ainsi savoir son opposition à un tel scénario, son porte-parole qualifiant de « spéculation » l’hypothèse d’une telle fermeture, soutenue en cela par le président d’une Commission étrangement silencieuse d’une façon générale.

Le point 2 de la Déclaration diffère donc largement de la version initiale de la Présidence, chacun conservant à l’esprit que la « route des Balkans » en question a vu passer plus de 800 000 personnes en 2015… Si la « pleine application » du Code frontières Schengen est actée, le texte final se borne à noter que « les flux irréguliers de migrants le long de la route des Balkans occidentaux ont désormais pris fin », sans valider une quelconque fermeture de la forteresse Europe.

En fait, le sommet avec la Turquie ne s’est pas déroulé comme imaginé la veille. Faisant suite à une réunion tripartite avec le premier ministre turc et la présidence néerlandaise qui n’aurait pas fait que des heureux parmi les Etats membres mis ainsi devant le fait accompli, la chancelière allemande a écrit un nouveau scénario donnant le premier rôle à la Turquie. En guise de consolation, l’essentiel du reste du projet initial de conclusions a pu alors trouver place dans la Déclaration, à l’issue de onze heures de négociations.

b. le rôle central de la Turquie

Là est le principal enseignement de la réunion du 7 mars : placée au centre de l’échiquier par l’Union, la Turquie a déposé une proposition alternative basée sur un principe intitulé « 1 pour 1 ». En clair, pour chaque réadmission d’un ressortissant syrien par la Turquie il y aurait une réinstallation correspondante d’un autre syrien acceptée par l’UE.

Ce faisant, la Turquie opère un rétablissement diplomatique étonnant, dans une atmosphère tendue par le conflit syrien et les atteintes à la liberté de presse à Ankara. Ces mesures qualifiées par la Déclaration « d’audacieuses » sont censées constituer, si elles voient effectivement le jour, une véritable « percée » qui expliquerait l’importance des contreparties accordées à la Turquie :

  • accélérer la mise en œuvre de la feuille de route relative à la libéralisation du régime des visas avec tous les États membres, en vue de supprimer les obligations de visa pour les citoyens turcs au plus tard à la fin du mois de juin 2016;
  • accélérer le versement du montant de trois milliards d’euros initialement alloué pour assurer le financement d’une première série de projets avant la fin du mois de mars, et décider de la mise en place d’un financement supplémentaire pour la facilité budgétaire en faveur des réfugiés syriens;
  • préparer dans les meilleurs délais la décision relative à l’ouverture de nouveaux chapitres dans le cadre des négociations d’adhésion, en s’appuyant sur les conclusions du Conseil européen d’octobre 2015.

On conçoit qu’un délai supplémentaire ait été exigé pour mesurer la portée de telles options et, sans doute aussi, pour calmer l’inquiétude d’un certain nombre d’Etats membres dont Chypre. On ne peut néanmoins que se désoler de voir l’Union européenne en être réduite à s’appuyer sur un Etat tiers pour s’acquitter ( ?) de ses obligations internationales, faute d’être capable de s’accorder avec ses Etats membres sur le partage de la charge de l’accueil des réfugiés conformément au principe de solidarité reconnu par le Traité de Lisbonne (article 80 TFUE).

Se défaussant sur un Etat tiers moins recommandable qu’elle ne le prétend, l’Union foule ainsi aux pieds ses propres valeurs, valeurs qu’au demeurant elle est incapable de faire respecter par ses propres membres.

c. l’absence du couple franco-allemand

Il est de plus en plus mis en lumière par la presse française, à juste titre, semblant indiquer ainsi que l’unité au sein de ce couple n’est que de façade, empêchant ainsi les réflexes classiques de l’Union de fonctionner à l’instant de conclure les compromis nécessaires.

On se souvient ainsi des déclarations du premier ministre français hostiles à la relocalisation, peu diplomatiques puisqu’effectuées lors d’un voyage en Allemagne, autant que de l’insistance des autorités françaises à parler de « crise des migrants », là où le partenaire allemand souligne la présence de « réfugiés ». L’opposition du Premier ministre britannique à une future « réinstallation » isole donc le troisième membre du trio des grands Etats, incapable d’un positionnement clair. Il faut également garder en mémoire l’hostilité de la France au mécanisme permanent de relocalisation proposé par la Commission.

On ne peut donc qu’imaginer que l’accord français quant à cette réinstallation soit relativement fragile et que sa compréhension envers la Turquie soit des plus relatives. La question de la libéralisation des visas, particulièrement sensible pour la France, comme celle de la relance du processus d’adhésion forment les points saillants de cette réticence française à suivre l’initiative allemande. D’autant qu’elle n’y a pas été associée, à supposer même qu’elle en ait été informée par Angela Merkel lors de sa visite préparatoire à Paris, avant le Sommet. Elle n’a pas davantage été conviée aux réunions du dimanche soir où le premier ministre néerlandais, la chancelière et le premier ministre turc ont scellé discrètement leur accord.

C’est donc le leadership allemand, et lui seul, appuyé par une présidence néerlandaise alignée sur la ligne expéditive qui a conduit à la solution proposée, faute des contrepoids habituels en la matière. Ni la Commission, ni un Parlement qui n’en sort pas grandi, n’ont compensé l’absence de vision commune ou d’alliances solides.

Cette conjonction de facteurs éclaire donc les conditions institutionnelles dans lesquelles l’Union a délibérément décidé de s’en remettre à un Etat tiers, provoquant des graves interrogations.

2. Les interrogations quant au principe « 1 pour 1 »

Là est la principale source d’interrogation posée par la lecture de la Déclaration du 7 mars. Dans l’objectif louable et légitime de briser le « business model » des passeurs en rendant leur office inutile, proposition est faite d’ouvrir, enfin, une voie d’accès légal au territoire de l’Union. Celle-ci doit évidemment être approuvée pour au moins deux raisons fondamentales.

Tout d’abord, cet accès légal via la Turquie permettra d’éviter que les personnes n’aient d’autre choix dans leur recherche d’une protection que de mettre en péril leur vie et celle de leurs enfants. En second lieu, cet accès légal devrait dans une mesure qui reste cependant à déterminer mettre fin, par la force des choses, au modèle économique développé en toute quiétude en Turquie dans les derniers mois. De la production industrielle de gilets de sauvetage inefficaces aux réseaux de passeurs opérant jusqu’en Grèce, ce modèle étonne par la facilité avec laquelle il s’est déployé et continue d’officier, dans la plus parfaite indifférence des autorités turques, pour ne pas en dire plus … On peut du reste s’étonner que la répression pénale de ce modèle n’ait pas fait l’objet de dispositions spécifiques parmi les priorités de la Déclaration.

Il n’en reste pas moins que les problèmes soulevés par l’option de renvoyer à la Turquie, non seulement les migrants irréguliers mais aussi tous les demandeurs d’asile arrivant dans les îles grecques sont extrêmement sérieux. Un survol rapide permet d’en prendre conscience.

a. l’obligation de respecter le droit de demander l’asile

Renvoyer des demandeurs de protection vers la Turquie pose d’abord la question de savoir si la Turquie est un « pays tiers sûr » (STC pour Safe Third Country), ce qui, contrairement à ce que les autorités de l’Union prétendent unanimement, est loin d’être acquis comme cela été a été démontré sur le blog Omnia à propos du plan d’action conclu entre la Turquie et l’Union en octobre 2015. La justification mise en avant dans sa conférence de presse par Jean Claude Juncker quant à la compatibilité de l’accord avec la Turquie au regard des règles du régime d’asile commun mérite donc d’être tempérée.

Les efforts, incontestables, de l’Etat turc pour faire face administrativement à une pression hors du commun n’en atténuent pas pour autant la dérive autoritaire du régime politique au pouvoir. Qui, dans l’Union, peut objectivement lui renvoyer à ce jour un Kurde ayant fui la guerre civile qui s’est rallumée dans les conditions que l’on sait ?

De plus, l’application du principe STC ne signifie pas pour autant que les demandes d’asile ne puissent pas être déposées. Le droit de demander l’asile doit être respecté et toute requête doit être enregistrée. Ce point devra évidemment être clarifié lorsque le Conseil européen se penchera sur les détails de la mise en œuvre de cet accord dans les prochains jours, sous peine de poser de graves problèmes de légalité, au regard du droit dérivé comme de l’article 18 de la Charte européenne des droits fondamentaux.

En outre, comme l’a opportunément rappelé le Haut Commissariat des Nations Unies pour les Réfugiés dans sa réaction publique à la Déclaration, effectuée devant le Parlement européen, l’application du principe du « pays tiers sûr » doit, en vertu du droit international, être accompagnée de garanties procédurales, en particulier un droit à agir en justice pour en contester le bien fondé à propos de la Turquie, sur la base de l’article 46 de la directive 2013/32 sur les procédures d’asile. La question des personnes « vulnérables » qui ne seraient pas en mesure d’être renvoyer en Turquie doit également être pris en considération comme exigé par l’article 14 de la directive directive 2008/115 dite « directive retour ».

Enfin, les modalités selon lesquelles l’accord de réadmission avec la Turquie aurait vocation à s’appliquer appellent la plus grande vigilance. On sait en effet l’attention de plus en plus sévère de la Cour européenne des droits de l’Homme quant au respect de l’article 4 du Protocole 4 à la CEDH, repris par l’article 19 §1 de la Charte des droits fondamentaux. Le retour automatique de personnes sans examen de leur situation individuelle pour la seule raison qu’elles arriveraient en groupe sur des îles grecques courrait le risque d’une censure semblable à celle de l’arrêt Khlaifia et autres c. Italie, certes porté depuis en grande Chambre, et examiné dans le blog Omnia.

b. le principe de non-discrimination

Le Conseil européen prétend donc « procéder, pour chaque Syrien réadmis par la Turquie au départ des îles grecques, à la réinstallation d’un autre Syrien de la Turquie vers les États membres de l’UE, dans le cadre des engagements existants ».

Ce principe « 1 pour 1 » formule clairement ici une discrimination directe, parce que fondée sur la nationalité et contraire à l’article 3 de la Convention de Genève relative au statut des réfugiés, ainsi qu’au principe de l’égalité en droit communautaire.

Si les candidats syriens méritent prima facie d’avoir accès à la protection, aucune raison juridique ne justifie d’exclure a priori d’autres candidats à l’accès au territoire de l’Union pour la simple raison qu’ils ont une autre nationalité, par exemple afghane ou érythréenne.

c. la réalité de l’ouverture d’un accès légal à l’Union

Tout d’abord, le nombre de personnes que l’UE envisage de réinstaller est loin d’être clair. Aucun chiffre ne figure dans les conclusions du Conseil européen, ce qui a d’ailleurs toujours été soigneusement dissimulé par le Plan d’action convenu avec la Turquie. Les présentes conclusions préservent ce mystère en disant que « le présent document n’établit aucun nouvel engagement pour les Etats membres en matière de relocalisation et de réinstallation » (point 3, dernier alinéa). Pas de nouveaux engagements, soit, mais quels engagements en fait ?

Cette ambiguïté pourrait créer de sérieux problèmes avec la Turquie dans un avenir proche, sinon conduire même à un blocage de l’accord conclu. En vertu de la logique « 1 pour 1 », les autorités turques devraient en effet s’attendre à un nombre de personnes réinstallées en concordance avec le nombre de personnes réadmises en Turquie. Or, et il n’y a aucun doute sur ce point, l’Europe a évidemment à l’esprit un plafond, sans même parler de certains États membres radicalement hostiles à la réinstallation au départ de la Turquie vers l’UE comme ils le sont à la relocalisation entre Etats membres.

Mais il y a pire. On peut en effet se demander si les Européens ne vont pas faire tout ce qu’ils peuvent pour vider de contenu leur promesse. La réinstallation est en effet prévue à ce stade pour « pour chaque Syrien réadmis par la Turquie au départ des îles grecques ». Qu’en sera-t-il pour ceux appréhendés en haute mer ou dans les eaux turques ?

On le sait, l’Union mène en mer Egée une opération de surveillance coordonnée par Frontex, bénéficiant également de la collaboration de certains bateaux de l’OTAN. Toute opération d’interception, à titre sécuritaire ou de sauvetage, ayant pour résultat d’empêcher les personnes de débarquer sur les îles grecques pourrait conduire au retour des personnes concernées en Turquie sans engagement de l’UE à réinstaller un nombre équivalent. On peut donc se demander à quel point le marché de sous-traitance envisagé par l’Union n’est pas un marché de dupes.

Enfin, la question du caractère volontaire ou obligatoire du mécanisme envisagé pourrait créer d’autres problèmes dans sa réalisation concrète, si l’on se souvient du feuilleton de la relocalisation qui, après avoir fait l’objet d’un premier accord intergouvernemental dans sa forme volontaire, a ensuite été coulée dans un texte juridiquement contraignant adopté à la majorité qualifiée pour forcer les Etats récalcitrants à l’accepter, sachant qu’elle n’a pour ainsi dire pas été mise en œuvre depuis son adoption en septembre 2016 et qu’elle est contestée en justice…

3. La persistance des velléités de fermeture des frontières

L’objectif de la chancelière allemande était clair, éviter une embolie de la Grèce provoquée par son isolement et la fermeture des frontières des Etats l’entourant. La crise économique et budgétaire aurait en effet découlé immédiatement de la crise humanitaire. D’où son opposition à la « fermeture » de la route des Balkans.

Le plan B consistant à fermer les frontières de Schengen aux demandeurs d’asile n’est pas abandonné pour autant. Le revirement autrichien a, par sa déloyauté, apporté un soutien décisif aux États membres du groupe de Visegrad en faveur de cette option en organisant cette quasi-fermeture, contrairement à ce que cet Etat membre avait promis à ses partenaires européens et en violation de ses obligations européennes et internationales.

Même si la querelle sur la phrase relative aux « flux irréguliers des migrants le long de la route des Balkans occidentaux » a été perdue par ce groupe d’Etats, l’intention des Etats membres demeure claire : « Les chefs d’État ou de gouvernement ont également rappelé que, lors de sa réunion des 18 et 19 février, le Conseil européen a décidé de revenir à une situation où tous les membres de l’espace Schengen appliquent pleinement le code frontières Schengen, tout en tenant compte des particularités des frontières maritimes, et de rompre avec la politique du « laisser passer » (point 2). L’interrogation consiste ici à savoir ce à quoi il est fait allusion à propos de la « politique du laisser passer » : joue-t-elle sur les frontières intérieures ou extérieures de l’espace Schengen ? Plusieurs éléments incitent à penser que la seconde interprétation est la bonne :

  • en premier lieu, la fermeture de leurs frontières extérieures par plusieurs Etats membres, assortie de quotas de demandeurs d’asile, en violation évidente du principe de non-refoulement, est passée sous silence par le Conseil européen. Ce choix coordonné et organisé collectivement laisse donc planer l’hypothèse du plan B ;
  • ensuite, la fourniture d’une aide humanitaire à la Grèce par l’Union afin de l’aider à survivre avec les migrants et les réfugiés qui pourraient être bloqués sur son territoire en raison de la fermeture des frontières de ses voisins, peut être interprétée comme acceptant implicitement le fait accompli;
  • l’Union envisage encore « une aide supplémentaire à la Grèce pour ce qui est de gérer les frontières extérieures, y compris celles avec l’ancienne République yougoslave de Macédoine et l’Albanie », semblant ainsi l’inciter à mettre en place des contrôles de sortie conformément au Code Schengen puisqu’il s’agit là de frontières extérieures. La situation de la Grèce semble donc, à ce stade, loin d’être réglée ;
  • enfin, selon le même ordre d’idées, la Déclaration invite à « prendre immédiatement toute mesure nécessaire en ce qui concerne de nouvelles routes qui pourraient s’ouvrir », confirmant ainsi la priorité donnée à la fermeture de l’espace commun.

Or, les frontières extérieures de l’Union ne peuvent pas, juridiquement, être fermées comme s’il n’y avait personne pour répondre quand quelqu’un frappe à votre porte. Cette possibilité n’est tout simplement pas prévue par le Code frontières Schengen. Comme déjà indiqué ci-dessus, les réfugiés doivent toujours avoir la possibilité de déposer une demande d’asile à la frontière. La directive sur les procédures d’asile prévoit précisément que les États membres ont la possibilité de mettre en œuvre des procédures frontalières dérogeant à certaines garanties procédurales. Ainsi, il est interdit de fermer les frontières en droit tout comme il est impossible de le faire en pratique.

Rappelons à l’égard de ceux qui pensent que le principe de non-refoulement prohibe seulement de ne pas renvoyer des réfugiés vers le pays qu’ils fuient, que ce principe concerne également tout autre pays où ils seraient soumis à des traitements inhumains ou dégradants prohibés par l’article 3 de la CEDH et 4 de la Charte de l’Union. La Cour européenne des Droits de l’Homme a estimé dans la célèbre affaire MSS que cela empêchait ainsi le retour de demandeurs d’asile vers la Grèce, en raison des conditions inhumaines et dégradantes dans lesquelles ils étaient reçus. Cette interdiction est opposable aux Etats membres mais aussi à tous les Etats parties à la CEDH de la région, de la Serbie à la Roumanie jusqu’à … la Turquie. Qui peut d’ailleurs jurer aujourd’hui des conditions d’accueil dans ces Etats ?

Enfin, la volonté implicite de certains Etats de transformer la Grèce en une sorte de camp de réfugiés semble également contraire à l’article 80 TFUE selon lequel « les politiques de l’Union visées au présent chapitre et leur mise en œuvre sont régies par le principe de solidarité et de partage équitable des responsabilités, y compris sur le plan financier ».

Cette disposition oblige directement les institutions de l’UE, ce qu’est désormais le Conseil européen. Faire valoir que l’acheminement de l’aide humanitaire est un signe de solidarité envers la Grèce n’interdit pas à celle-ci d’exiger de ses partenaires un partage équitable des responsabilités.

D’autant que ceux d’entre eux qui évoquent les multiples défaillances de la Grèce, parfaitement avérées, ne sauraient s’en prévaloir pour prétendre se dégager de leurs propres obligations à son égard : le principe de réciprocité ne vaut pas en droit de l’Union. Le temps n’est-il d’ailleurs pas venu de s’interroger sur un principe de base tel que celui de la force majeure ? Qui peut croire que, seul, un Etat comme la Grèce soit en mesure de mettre en œuvre ses obligations légales face à l’arrivée de plus de 800.000 personnes …

Au total, la manière dont les Européens s’enfoncent dans le règlement de la crise des réfugiés annonce un proche avenir bien sombre. Son incapacité à s’organiser et en particulier le refus de ses Etats membres à faire preuve de l’efficacité et de la solidarité requise amène l’Union à se placer dans une position de dépendance vis-à-vis de la Turquie. Semblables à des derviches tourneurs que le premier Ministre turc ferait danser durant un Conseil européen de plus en plus improvisé au fur et à mesure que la nuit avance, les chefs d’Etat et de gouvernement ont été gagnés par le tournis au point de perdre le sens de leurs valeurs tant monétaires que morales.

Au bout de la nuit, la Turquie est parvenue à leur présenter une addition de plusieurs milliards dont elle se réserve le droit de faire fluctuer le montant total pour marquer son accord sur une déclaration qui s’apparente à un contrat de sous-traitance du droit d’asile assorti d’une condition résolutoire purement potestative à son profit. L’une des clauses de ce contrat comprend notamment une limitation du droit d’asile dans l’Union européenne sur la base de quotas incertains dont le principe est avalisé par un Conseil européen à l’intérieur duquel certains Etats membres, par exemple l’Allemagne, reprochant à d’autres Etats membres, par exemple l’Autriche, d’avoir récemment adopté de telles mesures…

Lorsqu’ils auront repris leurs esprits face à une Turquie savourant sa revanche sur une Europe qui ne veut pas d’elle, ces chefs d’Etat et de gouvernement dont l’aveuglement d’aujourd’hui succède à leur incapacité à agir d’hier, décréteront-ils demain que la seule solution reste de fermer les frontières de l’Europe aux réfugiés comme aux migrants ? Pensent-ils convaincre les passeurs qui explorent d’ores et déjà la voie albanaise avant de redécouvrir la route meurtrière de Lampedusa ?

Le marché ainsi passé, dans la lâcheté la plus complète de l’ensemble des Etats membres, s’avèrera alors être ce qu’il est en définitive : un marché de dupes où l’Union aura sacrifié ses principes pour un plat de lentilles …

Counter-terrorism: The EU and its Member States must respect and protect human rights and the rule of law

JOINT CIVIL SOCIETY STATEMENT (*) Brussels, 1st March 2016.

The 2015 terrorist attacks in Paris and elsewhere – and the assertion by States that there is an elevated terrorist threat in the European Union (EU) – have led to a new set of counter-terrorism measures at both EU and national levels. These terrorist attacks are heinous criminal acts which undermine human rights. International human rights law itself requires that states must take appropriate measures to prevent and respond to acts of terrorism, in order to ensure the security and safety of the people in their territories. The undersigned organisations recall that counter-terrorism measures must always comply with the rule of law and human rights obligations under European Union and international law. Effective counter-terrorism measures and the protection of human rights are not conflicting but are aimed at overlapping, complementary and mutually reinforcing goals. In practice, widespread violations of human rights while countering terrorism have proven to be counterproductive.

The undersigned organisations acknowledge that states are facing substantial threats to the security of their populations that require effective action. However, the extent of restrictions on human rights that result or could result from adopted or contemplated security measures is significant. Transparency, information and meaningful participation of civil society are crucial to avoid excessive or other arbitrary restrictions on human rights as a result of counter-terrorism laws and policies.

An overarching concern is the fast-track procedures used by EU institutions and EU Member States authorities to adopt counter-terrorism measures, for instance in the Draft Directive on Combating Terrorism. This reduces the space for meaningful civil society participation and transparency, foreseen in EU Stakeholder Consultation Guidelines, and thus hinders accountability, which is contrary to Article 11 of the Treaty of the European Union. Adoption of emergency measures also does not allow for proper or, indeed, any impact assessments, as foreseen by the EU Better Regulation Guidelines and Better Regulation tool 24.

The shrinking space for civil society is a concerning reality not only outside the EU, but also within its own borders.

The undersigned organisations urge the EU and Member States to respect, protect and fulfil human rights and the rule of law:

The right to be free from torture and cruel, inhuman or degrading treatment or punishment.

 All States must comply with the absolute prohibition of torture and ill-treatment and take effective measures to prevent any acts of torture or cruel, inhuman or degrading treatment or punishment. They must ensure that allegations of such treatment are effectively and independently investigated and the perpetrators brought to justice, and that victims have access to effective remedies and reparations, including rehabilitation. States must ensure that statements and other information obtained through torture and ill-treatment, including information obtained abroad, are not invoked as evidence in any proceedings, except against a person accused of torture.1 This obligation includes a responsibility not to use or share torture-tainted information obtained in other States and should also cover EU agencies with cooperation agreements with third countries, such as Europol.

As a guarantee against ill-treatment within EU Member States, international fair trial rights should be respected, suspects arrested for terrorism offences should be notified of their rights effectively in accordance with international human rights law and Directive 2012/13/EU and access to a lawyer should be ensured in accordance with Directive 2013/48/EU. The important right of an arrested person to be brought promptly before a judicial authority upon arrest, as set out Article 5 European Convention on Human Rights (ECHR) and Article 9 International Covenant on Civil and Political Rights (ICCPR), that amongst other things is a safeguard against prohibited ill-treatment, should also be clearly enshrined in EU law.

No return to face human rights violations.

All removals and expulsions of persons must respect the principle of non-refoulement, meaning that nobody must be returned to a country where there are substantial grounds for believing that he/she would be in danger of being subjected to torture, ill-treatment or other serious violations of human rights. 2 This principle must hold true for people convicted of terrorism offences, or who are suspected of terrorism-related activity. Diplomatic assurances, which are typically not legally enforceable and are inherently unreliable, should not be considered as sufficient protection against torture, ill-treatment, unfair trial or arbitrary detention following removal.

The right to liberty and security of the person.

Any person arrested or deprived of their liberty, including by administrative detention, must have prompt access to judicial review of detention, and regular judicial review thereafter.

All detainees at all times have the right to challenge the lawfulness of their detention through judicial proceedings. They have a right to prompt and regular access to a lawyer, and the right to inform their family of their detention. Deprivation of liberty is permissible only on the grounds envisaged by Article 5(1) ECHR.

Where the authorities possess credible facts or information giving rise to a reasonable suspicion that a person has committed an offence, they may arrest that person on suspicion of committing an offence in accordance with Article 5(1)(c) ECHR and ensure all attendant guarantees, including the right to an adversarial hearing before a court enabling the suspect to contest the reasonableness of the suspicion and ensuring their access to materials necessary for challenging detention effectively.

Proposals for administrative forms of detention based on suspicion against the person but which circumvent the protections of criminal procedure are in principle unlawful, at least in so far as the state concerned has not formally derogated from international human rights obligations, including Article 5 ECHR due to a state of emergency that threatens the life of the nation.

Detention must even then be subject to strict criteria of necessity and proportionality, be subject to judicial review and allow for access to a lawyer. Whatever the basis for detention, solitary confinement must only be imposed in exceptional cases as a last resort, for as short a time as possible and subject to independent review, only pursuant to the authorisation by a competent authority and must never be prolonged. It can only be applied in conditions that ensure the detainees rights to health, due process and protection against ill-treatment will not be violated. Effective access to legal counsel and consular services should be ensured at all times.

Right to fair trial.

Individuals suspected of terrorism-related offences should be investigated, charged and tried before independent and impartial courts within the ordinary criminal justice system. Proceedings relating to terrorism offences sometimes involve evidence obtained from overseas operations, surveillance, intelligence and military agencies, which may be relied upon to demonstrate aspects of substantive offence definitions such as the individual’s intention and their concrete participation in terrorist offences; they may also be subject to particular media scrutiny.

Such proceedings must respect international law and standards on the right to a fair trial, as protected by Article 14 ICCPR, Article 6 ECHR and supported by EU Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings, and further Directives adopted under Article 82(2) TFEU including on the presumption of innocence, safeguards for children and legal aid.

These measures foresee no possibility of general derogation in times of emergency, and any limitations on the rights concerned must therefore be in accordance with the law, confined to what is necessary and proportionate to the legitimate aim pursued, subject to judicial oversight and must not undermine the overall fairness of the trial.

Outside the context of criminal proceedings (e.g. asset freezing, security measures imposing restrictions on individuals or organisations), the right to be heard and rights of defence should also be fully respected, in particular by enabling the person concerned to comment effectively upon the evidence which serves as the basis for the decision against them.

Definition of terrorism.

International human rights bodies have repeatedly expressed their concern that the potentially vague and over-broad scope of the definitions of terrorism in domestic law in certain jurisdictions may contravene the principle of legality and could lead to violations of human rights. Similar concerns apply to the definition of terrorism under EU law.

Member States and EU institutions should apply clear definitions of what constitutes a terrorist offence or ancillary offences of terrorism within national criminal law, to protect against arbitrary or discriminatory application.

Such definitions should ensure that concrete individual participation in intended or actual acts of terrorism is required for the offence to be committed. “Receiving training for terrorism” should be confined to receiving such training wilfully. Moreover, it is essential that offences of “receiving training for terrorism” be subject to establishing specific intent of carrying out, or contributing to the commission of the principal offence as a result of the training. In the absence of such intent, there is a risk of criminalising conduct, which lacks a sufficient proximate causal link with the main criminal offence.

It should be clear that these new criminal law provisions do not apply to conduct governed by international humanitarian law. States should give priority to fulfilling their existing international legal obligations to investigate and prosecute war crimes, crimes against humanity and other crimes under international law.

The right to non-discrimination.

Counter-terrorism policies have had a disproportionate impact on certain populations, including ethnic or religious minorities, including Muslims, people of African and Asian descent, migrants, or people perceived to be from these groups. Evidence shows the disproportionate effects on Muslim communities of the post 9/11 practices, such as racial profiling. 3

Evidence also shows that more recent European States’ policies and practices have disproportionately targeted Muslims and people perceived to be Muslim.

Ethnic profiling has been reported as on the rise in several EU member states. Intelligence services, police authorities and justice systems should be equipped to ensure fair and efficient policing and equal access to justice.

Discrimination undermines social cohesion and society as a whole, and can reinforce radicalisation and violence. Equality and non-discrimination   standards   must   be   complemented   by   specific   policy   strategies   by   Member States to address all forms of racism, including anti-Semitism, Afrophobia and Islamophobia. We welcome commitments made by the European Commission at the European Commission Colloquium on fundamental rights in October 2015, but encourage concrete follow-up in terms of obligations for Member States.

Freedom of expression and peaceful assembly.

Freedom of expression is often curtailed in states proposals to counter radicalisation or counter-terrorism, for instance in measures criminalising glorification of or apology for terrorism.

The proposed Directive on combating terrorism prohibits a person from threatening to commit certain acts or to aid, abet or incite someone to do so,4 even without any direct link to specific terrorist offences or activities in some cases.5  The Directive should include a provision on freedom of expression, as in the Council’s 28 November 2008 Framework Decision on combating terrorism.

Further, online surveillance and limits to freedom of expression should, in line with the primary law of the EU and international law, be provided in by law, be proportionate, necessary and subject to data protection law. It would for instance be important to ensure that such restrictions are targeted and subject to judicial pre-authorisation with a requirement for reasonable suspicion. Internet companies should not be pressured into censoring online content, for example by the threat of criminal sanctions, nor should they be forced to cooperate to undermine encryption, which would actually damage security online.

Greater efforts should also be made to combat online hate speech targeting groups at risk of discrimination, with more scrutiny to ensure such efforts meet human rights criteria. Counter-terrorism measures restricting freedom of assembly should be foreseeable and transparent, limited to what is necessary and proportionate in pursuit of a legitimate aim, based on corroborated evidence, have time limits and be subject to independent or judicial review. Blanket bans on demonstrations and other peaceful assemblies should be avoided.

The right to privacy.

The proposed Directive on the long-term storage and use of Passenger Name Record (PNR) for the purpose of profiling individuals as possible serious criminals or terrorists raises serious human rights concerns. These concerns include an excessive data retention period, lack of evidence showing that these measures are effective (in fact, the collection of data on an indiscriminate and mass basis has not been shown as necessary for preventing terrorist attacks) and the high risk of discriminatory use of the data depending on the way algorithms or data analyses indicators are designed.

The undersigned organisations are further concerned by indiscriminate mass surveillance practices carried-out by some Member States. In addition, PNR and other untargeted data mining and surveillances practices can lead to discriminatory behaviour and the prohibited processing of data revealing race, ethnic origin or religion through the use of proxies.

Both in this context and in context of the wider demands from law enforcement agencies for Internet companies to arbitrarily infringe on human rights, special attention needs to be brought to the development and use of algorithms for crime-fighting purposes.

Human rights of asylum seekers and migrants.

Migration is not a crime. States must refrain from policies and rhetoric that associate asylum-seekers and migrants with the threat of terrorism, and must not use counter-terrorism and counter-radicalisation measures as an excuse for curbing commitments to migration and international protection.

Additional “targeted” border checks, proposed in the context of the reform of Schengen, are problematic because they are based on travel and personal characteristics of individuals, and run the risk of ethnic profiling. Recent proposals to revise the mandate of EU border surveillance agency Frontex, and extend its competences, strengthen the security-oriented approach of European migration policy at the expense of migrants’ human rights.

These amendments must take into account the human rights obligations of Member States and the EU and should be accompanied by adequate safeguards for the respect of the human rights of EU citizens, migrants, asylum-seekers and refugees.

Without safeguards, monitoring and training for the new EU border and coastal guards and frontline officers, risks of human rights violations are higher. Efforts should be made to restore ethnic and religious minorities’ trust in law-enforcement authorities and promote community policing, using existing best practices such as through the hiring and training of policemen/women to engaging highly diverse communities in full respect of their cultural, religious and ethnic backgrounds. Effective policing relies on trust within communities.

Freedom of movement.

Criminalising travel for terrorism, as in the proposed Directive on Combating Terrorism, has a direct impact on freedom of movement. The right to leave a country, including one’s own, should only be restricted for specific and legitimate reasons and by proportionate means and not on general assumptions. The right to re-enter your own country must never be restricted arbitrarily or disproportionately.

Proposals which would have the effect of banning citizens from re-entering their countries should not be based on general assumptions. The potential withdrawal of an individual’s ID or passport based on suspicion of radicalisation and without a judicial decision based on an explicit and reasonable set of criteria set out in the law is law is incompatible with the right to freedom of movement. The withdrawal of EU citizenship for persons convicted of terrorism-related offences could lead to statelessness and additional arbitrary penalties.

Freedom of religion or belief.

Article 18 of the ICCPR and Article 9 ECHR do not permit any limitation to freedom to hold any thought, conscience and religion or the freedom to have or to adopt a religion or belief of one’s choice. Mosques should not be closed based on their alleged radical affiliation, without clear elements pointing to the establishment of responsibility for the commission of criminal acts of any of the individuals who owned or administered them.

Proposals to separate ‘radical’ prisoners from the rest of detainees would seem difficult to implement without unjustifiably infringing on freedom of religion as definitions of “radical” are vague, and no Member State has formulated a reliable and non-discriminatory list of indicators of radicalisation.

The proposal in the November 2015 Council conclusions to “develop risk assessment tools and tools to detect early signs of radicalisation in prisons” should ensure safeguards to prevent arbitrary profiling and protect freedom of religion and non-discrimination among prisoners. Prisons need more education and other programmes and resources to fully play their rehabilitation and reintegration role. For some offenders, alternative measures to detention should be explored as a way to reduce overcrowding in prisons, reduce repeat offender rates as well as prevent further radicalisation and encourage re-integration in society. The administration must organise meetings with former detainees who have managed their integration into society.

Human rights education and social inclusion.

The reaffirmation of “EU values” in the education systems fall short of addressing social exclusion and human rights violations, and therefore do not offer a real counter-narrative to radicalisation. Human rights and the rule of law are universal values, with their basis in the Universal Declaration of Human Rights, and are not exclusive to any one region or culture. Comprehensive human rights education programmes should be available in schools, including on digital rights, equality and non-discrimination, European history and minorities’ contributions to Europe. Long-term social investment in education, housing, employment, health and social services are crucial to stop the massive disenfranchisement of sizeable parts of the population.

 Counter-terrorism and human rights in external affairs.

The EU should implement the Operational Human Rights Guidance for EU external cooperation actions addressing “Terrorism, Organised Crime and Cybersecurity: Integrating the Rights-Based Approach”.

As committed to in the EU strategic framework on human rights and democracy, the EU should ensure that human rights and rule of law are fully respected in the implementation of its activities, projects and agreements and are at the centre of all EU agencies, EU programmes, legislation, policies and mechanisms.

Cooperation with third countries requires a human rights risk assessment, and the setting-up of monitoring-protection-reporting mechanisms to ensure the full protection of human rights. Countering terrorism should go hand in hand with activities ensuring the full protection of human rights, including the rights of Human Rights Defenders and with concrete measures protecting the space for civil society in regard to counter-terrorism and security issues. Failure to take such measures has contributed to increases in radicalisation and impunity.

NOTES

1.See Article 15 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Guidelines to EU policy towards third countries on torture and other cruel, inhuman or degrading treatment or punishment, General Affairs Council of 18 April 2008.
2 See Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Article 33 of the 1951 Convention Relating to the Status of Refugees and article 33 of the 1951 Convention Relating to the Status of Refugees.
3   From   the   European   Network   Against   Racism   (ENAR)   Shadow   reports,   Open   Society   Foundations   (OSF),   Amnesty International and the European Union Agency for Fundamental Rights (FRA).
4 Articles 3(2)(i), 8 to 13 and 16 of the draft Directive on combating terrorism.
5. Article 15 of the draft Directive.

 

(*) Signed:

  • European Network Against Racism (ENAR)
  • Amnesty International
  • International Federation of Human Rights (FIDH)
  • International Commission of Jurists (ICJ)
  • Open Society European Policy Institute
  • World Organisation Against Torture (OMCT)
  • Fair Trials
  • European Digital Rights (EDRi)
  • Forum of European Muslim Youth and Student Organisations (FEMYSO)
  • International Federation of Action by Christians for the Abolition of Torture (FIACAT)
  • International Rehabilitation Council for Torture Victims (IRCT)
  • Association for the Prevention of Torture (APT)
  • European Association for the Defense of Human Rights (AEDH)

Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY

NOTA BENE : RE-BLOGGED FROM VERFASSUNGSBLOG

The EU and Turkey seem to be heading towards an agreement on how to manage the Syrian refugee issue between them, including Turkey taking back refugees who entered the EU by boat from Greece and a flexible quota of refugees eligible for legal resettlement to the EU. Is this good or bad news?

As such, a system under which place of arrival is divorced from place of protection could be both legal and a good thing — if it enables those to be resettled to be chosen on the basis of eg. relative urgency of need, rather than just on the basis of who can pay for a smuggler. And to the extent that smugglers are no longer needed to reach solid protection, that is also a positive thing.

Some decry that this „one in, one out“ model treats people like cattle. How would such an agreement fit in with a system of individual asylum rights?

An individual is entitled to decide for himself where to seek recognition of his refugee status.  For this reason, undifferentiated efforts to deter groups known to include refugees — for example, NATO action “against smugglers”, to the extent it precludes refugees from reaching a state party — are in breach of the Refugee Convention. (And refugees are explicitly exempt from penalties for unlawful arrival). But the right to decide where to seek recognition of refugee status does not entail the right to choose where international refugee protection is to be enjoyed.  States enjoy substantial latitude to require a refugee to benefit from protection in a state not of the refugee’s choosing.

Is Turkey with its dismal human rights track record and questionable refugee protection standards a legally possible candidate for such an agreement in the first place?

There are three requirements that must be met for a state lawfully to remove a refugee to accept protection in a country not of his choosing: First, the destination state must be a state party to the Refugee Convention.  Second, it must ensure that refugees are in fact recognized.  And third, the destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).

Let’s start with the Convention. Turkey is a member state, isn’t it?

On this front, Turkey — despite appearances to the contrary — does not yet comply.  It has entered a geographical limitation on its accession to the Refugee Convention, under which it assumes no obligations to non-European refugees.  Put simply, obligations cannot lawfully be shared with a state which has none — and in this case, Turkey has none towards relevant refugee populations. Turkey would have to withdraw its geographical limitation. And since it in fact receives millions of non-Europeans, this may be politically feasible — especially when 6 billion Euros are involved.

What about the refugee status? Would Turkey have to recognize those who are returned from Greece as refugees?

Turkey must either recognize the refugee status of those returned or have a fair and effective process in place. UNHCR involvement in the process or an EU support office overseeing the refugee status determination process might enable this requirement to be met.  Or Turkey might simply agree — as many less developed countries do — to treat those returned from the EU as refugees without need of formal status assessment.

So, unless Turkey factually meets the standards of the Refugee Convention, legally there can’t be any removal of refugees to Turkey?

The destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).  As senior courts have made clear, this is a matter of enforceable facts on the ground — not promises.  To date Turkey has a mixed, but largely positive record in this regard.  A process of international oversight and effective remedies for breach would be a plausible answer to the concern.

The resettlement quota seems to be only for Syrians. What about the Afghans, Iraqi and Eritreans and others who might also be in need of asylum and, in fact, entitled to get it?

Art. 3 of the Refugee Convention prohibits “discrimination” between and among refugees on the basis of country of nationality.  To the extent that all refugees are returned by the EU to Turkey but only Syrians — not eg. the many Iraqis and Afghans who also have solid refugee claims — can benefit from EU protection via resettlement, there is a potential issue of discrimination.  But if shown to be “objective and reasonable,” the differentiation is not discrimination, and thus not unlawful — and this might be shown.

So, under international refugee law the path taken by Turkey and the EU is viable?

Not necessarily. The more critical challenge arises from the European Convention on Human Rights.  While under the Refugee Convention there is no protection from “expulsion” that does not involve “refoulement” to the county of origin until an individual is admitted to a refugee status determination procedure (and hence is “lawfully present”), the ECHR disallows “collective expulsion of aliens.”  Perhaps unwittingly (and perhaps unwisely) the jurisprudence under the ECHR has found that even if it might otherwise be thought objective and reasonable, a “collective” procedure to expel non-citizens that does not take include a means to take account of individuated circumstances  is in breach of the ECHR.  My own view is that the jurisprudence to date did not consider systemic responsibility-sharing systems of the kind that meet the three criteria mentioned above, and might well have evolved differently had the cases involved a clearly protection-oriented scheme.  But (perhaps regrettably) the language of the case law to date does indeed seem to require an individuated assessment before expulsion of aliens is lawful.  In this sense, the ECHR seems to take away the flexibility that the Refugee Convention intended that states should enjoy in ensuring that all refugees get protection.

Questions: Maximilian Steinbeis

SUGGESTED CITATION  Hathaway, James C.: Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY, VerfBlog, 2016/3/09, http://verfassungsblog.de/three-legal-requirements-for-the-eu-turkey-deal-an-interview-with-james-hathaway/.

Europe to the Rescue? EU Law, the ECHR and Legal Aid

NOTA BENE : Chapter from Palmer, Cornford, Marique and Guinchard, Access to Justice: Beyond the Policies and Politics of Austerity (Hart, 2016)

by  Steve Peers

Introduction

Some potentially radical changes in public policy are prevented, or at least constrained somewhat, by the twin protections provided by European Union (EU) law and the European Convention on Human Rights (ECHR). Is this true of cut backs of legal aid in civil and administrative cases?

Legal aid in EU countries takes two forms: support for the costs of a lawyer, and exemption from court fees.1 Some states provide for only one of these types of support, and some provide both. There are also alternative means of assisting litigants, namely: legal expenses insurance, legal advice centres, pro bono work and self-help services.2 Across the EU, there is a wide discrepancy in the amount of legal aid expenditure per person, with most Member States spending less than €5 per person and expenditure being cut in many countries.3

The ECHR

Although Article 6(3)(c) ECHR guarantees legal aid as regards criminal matters, there is no express provision on legal aid in civil or administrative proceedings. However, starting with the 1979 judgment in Airey v Ireland,4 the European Court of Human Rights (ECtHR) stated that the general right to a fair trial in Article 6(1) ECHR could include an implied right to legal aid in civil cases too, if this is necessary to ensure effective access to justice. The facts of the case concerned judicial separation proceedings, and the Court considered that the alternative of presenting her case in person would not fully guarantee the applicant’s right to a fair trial, due to the complex procedural and substantive law, the need for expert advice as regards evidence and other witnesses, and the emotional impact of the case.

The Court rejected the argument that a right to legal aid in civil proceedings brought the ECHR unduly into the field of social rights, and that Article 6(3)(c) ECHR implied a contrario that there was no right to legal aid in civil matters.

The key point was that ‘despite the absence of a similar clause for civil litigation’, Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.

Subsequent case law made clear that there is no general right to legal aid in all civil proceedings. Rather, any limitation on the right of access to the courts (the implied right which legal aid facilitates) cannot undermine the very core of the right.

Limitations of the right must pursue a legitimate aim, and must also be proportionate in light of the legitimate aim which they seek to satisfy. For instance, in Tolstoy-Miloslavsky the applicant, a defendant in a libel case, challenged an order for security for costs of over £100,000 that he would have to pay within 14 days in order to bring an appeal.5

The ECtHR ruled that there was a ‘legitimate aim’ for the costs order (protecting the other party from shouldering his own costs if the applicant could not pay them in the event of an unsuccessful appeal). The merits test imposed upon the proceedings could also be ‘said to have been imposed in the interests of a fair administration of justice’. The security for costs requirement did not impair ‘the very essence’ of the right of access to court, because there had already been an extensive first-instance hearing; the sum was a reasonable estimate of the costs involved; the applicant could not have raised the money in a longer period of time; the national court took the merits into account when considering a possible waiver of an order for security of costs; the applicant was more interested in determining liability than costs (he had refused a proposed settlement); and there was a full judicial assessment of the costs issue. Therefore there was no ‘arbitrariness’ in issuing the order for security of costs.

In the case of Kreuz v Poland,6 the ECtHR reiterated that a requirement to provide security for costs was in principle a legitimate restriction on access to court. But in that case, the required security amounted to a year’s average salary. Although the applicant was a businessman, the dispute was ‘related only loosely, if at all, to a business activity as such’. Rather it was a claim for damages against a public authority. Also, the national courts only considered his hypothetical earning capacity, not the amount which he actually earned, did not supply any evidence to contradict his account of his earnings, and made assumptions which were not supported by any evidence. Moreover, national law allows for the exemption from court fees to be revoked if the applicant’s financial situation improves. On the whole, then, there was an insufficient balance between the state interest in collecting court fees and the applicant’s right to vindicate his claim in the courts, since the required fee was excessive and deterred him from going to court at all.

Another key judgment is Steel and Morris v United Kingdom.7 In a case involving libel defendants, the ECtHR began by reiterating the basic case law on when legal aid was necessary in civil cases pursuant to Article 6 ECHR. This must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively. Restrictions are possible if they ‘pursue a legitimate aim and are proportionate’. So conditions can be imposed on ‘the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings’.

The state is not obliged to grant legal aid ‘to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary’.

Applying these criteria, first of all, this case was different from previous judgments like Airey because ‘the proceedings … were not determinative of important family rights and relationships’, and usually there is a distinction between a defamation action aiming to protect an individual’s reputation from an application for judicial separation, ‘which regulates the legal relationship between two individuals and may have serious consequences for any children of the family’. But here the applicants did not bring the proceedings, but ‘acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention’, and the damages awarded against them were huge in comparison with their modest incomes.

The case was also distinct from prior judgments ruling that the English law of defamation and civil procedure is not complex enough to require legal aid,8 since those rulings concerned a single allegation while Steel and Morris concerned the longest trial in English history, with thousands of pages of evidence, over 100 witnesses, judgments running to over 1000 pages and numerous legal and procedural issues.

Compared with prior cases, in which the defamation actions were brought by professionals, the applicants would have met the means test for legal aid and benefited from some pro bono legal assistance and latitude extended by the courts. But the ECtHR ruled that this was not a ‘substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel’, and the ‘disparity’ between their legal assistance and the plaintiff’s (McDonald’s Restaurants) ‘was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness’. Therefore there was a breach of Article 6.

As for the form of legal aid granted, states have discretion to provide different forms of legal aid for different types of litigation. For instance, it was acceptable for the UK to exclude defamation cases from legal aid support, since it had granted potential litigants of defamation cases the right to two hours of free pre-litigation legal advice, if they had insufficient means.9

As regards one type of plaintiff (profit-making companies), the ECtHR ruled that their exclusion from a national legal aid scheme was acceptable since the discrimination between them and non-profit-making organisations and natural persons had an objective and reasonable justification (the possibility to deduct the legal costs from the company’s tax bill).10

EU Law Continue reading

Enhancing and diluting the legal status of subsidiary protection beneficiaries under Union law – the CJEU judgment in Alo and Osso

ORIGINAL ON EU LAW ANALYSIS (Wednesday, 9 March 2016)

by Louise Halleskov Storgaard, (*)

Is it in accordance with the Qualification Directive (QD) to restrict the freedom of movement within the host country of beneficiaries of subsidiary protection (a form of protection parallel to refugee status) in receipt of social security benefits? This question was addressed by the CJEU in its ruling of 1 March 2015 in the Alo and Osso case. The Court’s answer and its reasoning is equally interesting, groundbreaking and controversial as it, on the one hand, strengthens the impact of the Geneva Convention (the United Nations Convention on the Status of Refugees) on the QD standards and the substantive content of subsidiary protection while it, on the other hand, creates uncertainty about the applicable non-discrimination standard in such cases.

Facts

Mr Alo and Mr Osso are Syrian nationals who, independently of each other, in 2012 were granted subsidiary protection status in Germany. German law prescribes that, where beneficiaries of subsidiary protection receive social security benefits, their residence permit is issued subject to a condition requiring residence to be taken up in a particular place of the country. This condition does not apply to third-country nationals legally residing in Germany on other grounds than international protection (ie, subsidiary protection or refugee status). Since both Mr Alo and Mr Osso had been in receipt of social security benefits since they arrived in Germany, their residence permits required them to take up residence in, respectively, a specific town and specific parts of a region in Germany. They both disputed this requirement and on appeal the Bundesverwaltungsgericht (German Federal Administrative Court) decided to stay the proceedings in both cases and ask the CJEU to clarify the conformity of the place-of-residence condition with the QD.

The relevant provisions of that directive read:

Article 29

Social welfare

  1. Member States shall ensure that beneficiaries of inter­national protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.
  1. By way of derogation from the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same level and under the same eligibility conditions as nationals.

Article 33

Freedom of movement within the Member State

Member States shall allow freedom of movement within their territory to beneficiaries of international protection, under the same conditions and restrictions as those provided for other third-country nationals legally resident in their territories.

Judgment

The CJEU started out by providing important new guidance on the interpretation of the QD. It reiterated the statements most recently made in El Kott concerning the necessity of ensuring consistency with the Geneva Convention and a full and inclusive application of that Convention. The CJEU then went one step further as it declared that the Geneva Convention is to be used as interpretative guidance also in cases involving subsidiary protection beneficiaries. To justify this approach the CJEU referred to statements made in the preamble about the European asylum system, as a whole, being based on the full and inclusive application of the Geneva Convention and about the intention of the EU legislature to establish a uniform status for all beneficiaries of international protection subject only to necessary and objectively justified derogations.

Against this interpretative backdrop the CJEU ruled that since Article 33 QD does not specifically allow for difference in treatment between refugees and subsidiary protection beneficiaries, and since Article 26 of the Geneva Convention on freedom of movement of refugees includes the right for refugees to choose their place of residence, the same must apply as regards Article 33 QD. Consequently, the place-of-residence condition constitutes a restriction with the freedom of movement guaranteed by Article 33 QD. Similarly, Article 29 QD was interpreted by the CJEU in light of Article 23 of the Geneva Convention leading to the conclusion that the place-of-residence condition also constitutes a restriction on the access to social welfare of beneficiaries of subsidiary protection when it is not also imposed on German nationals.

The CJEU continued to the question of whether these restrictions could be justified by the two aims put forward by the German authorities: 1) achieving an appropriate distribution of the burden of paying certain social benefits among the various institutions competent in that regard; and 2) preventing social segregation and its negative consequences for integration (integration policy considerations).

To that end the CJEU established a general test as it explained (para. 54):

”[n]ational rules could legitimately provide for a residence condition to be imposed on beneficiaries of subsidiary protection status, without such a condition being imposed on refugees, third-country nationals legally resident in the territory of the Member State concerned on grounds that are not humanitarian or political or based on international law and nationals of that Member State, if those groups are not in an objectively comparable situation as regards the objective pursued by those rules.

Applying this test to the first aim invoked by the German authorities, the CJEU acknowledged that the movement of recipients of social security benefits or the fact that such persons are not equally concentrated throughout a Member State entails the risk of an uneven distribution of the financial burden. However, the Court pointed out that this risk relates not only to subsidiary protection beneficiaries but also to refugees and other third-country nationals residing legally in receipt of social benefits. For that reason the place-of–residence condition is in breach of Articles 29 and 33 QD.

Concerning the second aim relating to integration policy, the CJEU first explained that Article 29 QD is not relevant to consider because beneficiaries of subsidiary protection status and German nationals are not in a comparable situation as far as the objective of facilitating the integration of third-country nationals is concerned. As regards Article 33 QD, the CJEU left it for the Bundesverwaltungsgericht to assess whether beneficiaries of subsidiary protection status are in a situation that is, so far as concerns the integration aim, objectively comparable with the situation of third-country nationals legally residing in Germany on grounds that are not humanitarian or political or based on international law.

The CJEU offered some guidance as it explained that theBundesverwaltungsgericht will have to determine whether the fact that the person receiving welfare benefits holds international protection, in this case subsidiary protection status, means that he or she will face greater difficulties relating to integration than third-country nationals holding another immigration status than international protection. That might particularly be the case if the latter group of persons are eligible for welfare benefits only after a certain period of continuous legal residence in the host Member State since it can (para. 63):

“be assumed from such a period of residence that the third-country nationals concerned are sufficiently integrated in that Member State and therefore would not be in a situation comparable with that of beneficiaries of international protection so far as the objective of facilitating the integration of third-country nationals is concerned.”

Comments

This is the CJEU’s first judgment on the revised “second-phase” QD. Four interrelated aspects of the case deserve particular attention:

First, the case cements the Geneva Convention’s function as a cornerstone of the Common European Asylum System (CEAS) measures by enhancing the strong link between that Convention and the QD. In that respect the Court’s extension of the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries is groundbreaking. One of the key features of the second-phase QD is precisely that it improves the substantive content of subsidiary protection, and by allowing for the Geneva Convention to function as the guiding standard to ensure equality of treatment between refugees and subsidiary protection beneficiaries when interpreting Chapter VII QD, the CJEU secures that Union law also in practice complements the ECHR and the Geneva Convention in this area. The CJEU’s reasoning on this point therefore illustrates the gradual EU law development towards an alignment of the two statuses of international protection which was fuelled by the Stockholm Programme and has been implemented not only in the QD, but also the second-phase Dublin and Eurodac Regulations and procedures and reception conditions Directives.

Second, unlike in the Bolbol and El Kott judgments concerning the first-phase QD, the CJEU did not justify the application of specific provisions of the Geneva Convention by the fact that the relevant text of the QD refers to these provisions. Instead, the CJEU referred to the preamble to the QD where it is stated that the directive responds to the Stockholm Programme’s call for a uniform international protection standard and that equality between the two statuses shall be granted as regards rights, benefits and conditions for eligibility “with the exception of derogations which are necessary and objectively justified”. To buttress the argument the CJEU referred also to Article 20 (2) QD, according to which Chapter VII QD (which concerns the content of status, ie what recognized refugees and people with subsidiary protection are entitled to) applies to both refugees and subsidiary protection beneficiaries unless otherwise indicated. As the Court’s reasoning on this point is not limited to cases involving Articles 29 and 33 QD, the Geneva Convention can be used as a yardstick for the interpretation of all provisions in Chapter VII QD. However, it remains to be seen whether the CJEU in future cases is willing to extend the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries beyond situations concerning the substantive content of this status – within or outside the QD. Since all second-phase CEAS directives contain elaborate references to the call for uniformity in the Stockholm Programme, there is some room for arguing that the Geneva Convention should also guide e.g. the interpretation of the Procedures Directive in cases involving procedural arrangements and status determination of persons eligible for subsidiary protection.

Third, it is worth noting the road not taken by the CJEU. In his opinion, AG Cruz Villalón argued that the circumstances of the case warrant that Article 33 QD must be interpreted through the lens of the non-discrimination provisions in Article 21 of the EU Charter of Fundamental Rights and Article 14 ECHR in conjunction with the fundamental right to freedom of movement set out in international human rights law, including Article 2 of Protocol 4 to the ECHR. Since the AG too found that the place-of-residence condition constitutes a restriction on the right guaranteed by Article 33 QD, he assessed whether that condition could be justified under the general rule on limitations on Charter rights in Article 52 (1) of the Charter in light of the two aims referred to by the German authorities. The AG found both aims to be legitimate but when assessing the proportionality of the restriction, he concluded that the economic burden-sharing objective was not appropriate to this aim. The AG left it for the referring national court to assess whether integration policy considerations could justify the restriction.

Fourth, the AG’s reasoning is interesting because it may offer insight as to how the CJEU came up with the above-quoted “comparable-test”. Arguably, this test is not easily comprehensible and depending on how it is applied by national courts and by the CJEU in future cases, it can dilute some of the above-identified impact of the Court’s findings concerning the application of the Geneva Convention to subsidiary protection beneficiaries. The essence of the Court’s reasoning is (seemingly) that even though equality of treatment is the main rule, and even though a derogation is not explicitly provided for, then subsidiary protection beneficiaries can be treated differently than refugees as regards the rights guaranteed under Chapter VII QD, “if those groups are not in an objectively comparable situation as regards the objective pursued by those rules”. The same applies as regards difference in treatment compared to other legally resident third-country nationals and nationals.

There is no information in the judgment about the origins of this test. Unlike the AG opinion, the judgment does not contain any reference to non-discrimination provisions or other fundamental rights standards, and there is no indication as to whether it is a reformulation of the “necessary and objectively justified”-requirement listed in the Stockholm Programme either.

Still, it is safe to say that the Court’s reasoning bears resemblance to the non-discrimination test under Article 21 Charter and Article 14 ECHR (i.e. that difference of treatment of persons in comparable situations on account of a prohibited discrimination ground must be objectively and reasonably justified). It is therefore important to note that the CJEU links the fulfilment of the comparable situation-requirement under the QD to the objective of the disputed national provision, which is a different and (from an applicant’s perspective) less favourable approach than that applied by the ECtHR in non-discrimination cases. In the Hode and Abdi case (relied on by the AG), the ECtHR thus ruled that refugees who married after leaving their country were in an analogous position with refugees who married before this point in time as well as with third-country national students and workers solely because the immigration status held by all groups was of a limited nature. The ECtHR disregarded the UK Government’s objection concerning the purpose of the various immigration statuses being fundamentally different. In fact, from a non-discrimination perspective, the CJEU’s reasoning in Alo and Ossois entirely confusing since the assessment of both aims put forward by the German authorities is better characterised as a proportionality assessment (similar to the one conducted by the AG) than an assessment of the “objective comparability” of subsidiary protection beneficiaries with other groups of legally residing third-country nationals as regards the aims pursued by the place-of-residence condition. This is illustrated by the fact that the CJEU’s arguments concerning the economic burden-sharing aim in reality concerns whether the place-of-residence condition is an appropriate means to reach that aim.

Although it is far from certain that the CJEU intended to or even found it relevant to align the test developed under Articles 29 and 33 QD with that of Article 14 ECHR, the vocabulary chosen by the Court makes it reasonable to draw parallels and compare with that provision. And by departing from the approach of the ECtHR in a very similar case and leaving it for the referring national court to apply the test in practice in light of relatively abstract guiding criteria, the CJEU creates undue legal certainty about the applicable non-discrimination standard in cases involving difference of treatment of international protection beneficiaries.

(*) Assistant Professor, Aarhus University