Goodbye, cruel world: visas for holidays after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (April 25, 2016)

by Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a reportdrawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant dataas an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal recordswas set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fiftynon-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23rd?

(Legislative Alert) : The EU Directive on Passenger Name Record (PNR)

DIRECTIVE (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of … on the use of passenger name record (PNR) data  for the prevention, detection, investigation and prosecution of terrorist offences and serious crime

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular point (d) of Article 82(1) and point (a) of Article 87(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee[1],

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure[2],

Whereas:

(1)          On 6 November 2007 the Commission adopted a proposal for a Council Framework Decision on the use of passenger name record (PNR) data for law enforcement purposes. However, upon entry into force of the Treaty of Lisbon on 1 December 2009, the Commission proposal, which had not been adopted by the Council by that date, became obsolete. Continue reading “(Legislative Alert) : The EU Directive on Passenger Name Record (PNR)”

(Legislative Alert) : The Council “general approach” on the future EU Border Agency.

NOTA BENE : Following intense negotiations inside the working groups of the Council (see some preparatory works on Statewatch and soon on a WIKI-LEX page of this site) the Coreper has agreed Yesterday (April 7) on a mandate for negotiations with the European Parliament, as set out in the text below.
Even if the Treaty requires that debates and votes on legislative proposals should be public (also in the Council) in the case of the so called “early agreements” and “trilogues”   everything is still blurred. In this parallel world “informally” created by the co-legislators it is not clear the nature of the preparatory votes in the Council/Coreper  (qualified majority ? unanimity ?) , nor the role of the Commission, nor the impact on the original legislative proposal.
These legal procedural niceties taken apart (!?)  in the text of the mandate below the envisaged changes vis-à-vis the Commission proposal are highlighted in underline and strikethrough.  It should be noted that an additional legal basis, i.e. point (e) of Article 77(2) TFEU has been considered necessary,  in order to cover the provision of draft Article 18(8) which deals with issues related to controls at the internal borders.
Chapter I of the proposal (Article 2) deals with the definitions of the concepts used in it. Among them, the definitions of “external borders” and of “hotspot areas” should be highlighted.
Chapter II, Section 1 (Articles 6-7), concerns the name and the tasks of the new Agency. 

Chapter III, Sections 3-5 (Articles 50-78), deals with the cooperation between the future Agency and different stake holders (including with third countries), the general framework and organisation of the Agency and the financial requirements for its proper functioning.
Among the important issues tackled in these provisions, emphasis should be given in particular, on:
i) the envisaged facilitation of cooperation by the Agency with the Member States and the Commission in specific activities related to the Customs Area (Article 51);
ii) with regard to the cooperation with third countries, the Council has taken on board the view expressed by a number of delegations according to which the participation of Member States in joint operations on the territory of third countries shall be only on a voluntary basis. The joint operation in question shall be carried out on the basis of an operational plan agreed also by the Member State bordering the relevant operational area. In the same context, the compromise envisaged by the Council includes a provision on the Status Agreement that should be concluded by the EU and the third country for the deployment of the members of the teams in appropriate situations (Article 53);
iii) more functions have been added in the remit of the Management Board so as to meet with the role that is envisaged for it;
iv) the deletion of the provision on Supervisory Board, following a consistent request by many delegations (Article 69).
Finally, Chapter IV (Articles 79-82) covers the final provisions.

A detailed comment of this proposal which can be considered the first case of a quasi – federal Agency will follow.
EDC

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC Continue reading “(Legislative Alert) : The Council “general approach” on the future EU Border Agency.”

(EP Study) The  proposal  for  a  European Border  and Coast  Guard: evolution  or  revolution  in  external border management?

THIS IS AN EXECUTIVE SUMMARY. (ACCESS TO THE FULL STUDY (40 pages) HERE)

by Dr. Jorrit Rijpma

The Commission proposal for a European Border and Coast Guard Authority brings together a reinforced (and renamed) Frontex – the European Border and Coast Guard Agency (EBCGA) – and the Member States’ border guard authorities under the umbrella of a European Border and Coast Guard (EBCG), making them jointly responsible for the management of the external borders. The proposal defines for the first time the notion of European integrated border management. It significantly broadens the scope of the new Agency to include internal security and measures within the area of free movement. The proposal reinforces both Frontex’s regulatory and operational role. In addition, it gives the  Agency  a  supervisory  role,  placing  it  in  charge  of  Vulnerability  Assessments.

As such, the EBCG proposal is an important next step in the progressive Europeanisation of external border management. That said, the proposal is not a revolutionary leap forwards, as it preserves the fundamental premise that the Agency neither has its own border guards nor powers of command and control over national border guards.

Still, a proposal of this complexity, with substantial financial implications and an obvious impact on fundamental rights, deserves careful consideration.

The proposal does not address some key questions as regards accountability for operational activities at the external borders and is rather likely to add to the current unclear division of responsibilities. There is, moreover, a danger of placing unrealistic expectations on the Agency.

It seems contradictory that Member States would be willing to accept more binding obligations under this proposal, while nothing prevents them from furnishing the Agency with the necessary tools now. Likewise, it would be naïve to think that greater powers and a new name for Frontex might suddenly remedy structural   flaws in  some Member  States’ external  border  management   systems.

Although the current crisis may have exposed shortcomings in Frontex’s current legal framework, the proposal does not constitute a genuine emergency measure designed to tackle a short-term problem. Therefore, if this proposal is to stand the test of time as the regulatory framework for external border management, it is important to carefully consider the  structural   implications of  the  rules currently being  considered for  adoption.

With this in mind, this analysis highlights some of the central challenges in the new EBCG framework  and provides  some  recommendations  on  how these  might  be addressed.

Supervisory  role

The Agency’s supervisory role also entails drawing up Vulnerability Assessments to identify operational  weaknesses  in   external  border  management.   In  this  regard, it is  important  to:

– Clarify   the   relationship   between   the   Schengen   Evaluation   Mechanism   and   the Vulnerability  Assessment  model.

– Ensure  that  the   Agency’s  supervisory  role  does not  prejudice  working  relations in the field of operational cooperation.

– Introduce a fundamental rights component into  the  Assessments.

Regulatory  role

Under the proposal, Member States would be obliged to provide the Agency with relevant information  for its  risk  analysis.

– A more specific explanation of what constitutes relevant information could help to  clarify the  extent of this obligation.

– If the Agency were to be given access to European databases, this would have to be under strict conditions, taking into account relevant data protection legislation.

Operational  role

Availability of human  and  technical  resources

The proposal aims to remedy the current lack of human and technical resources. As such, in emergency situations, Member States would be required to provide border guards, with no possibility, as is currently the case, to invoke an emergency situation requiring their deployment at home. Similar, yet weaker provisions have been included as regards the obligation to make available technical equipment.

The Agency will be allowed to acquire its own  equipment.

In addition, the Commission proposal provides for a right to intervene where a Member State does not follow up on the recommendations from the Vulnerability Assessment or in a situation where insufficient external border controls would put the overall functioning of the Schengen area at risk. This latter provision has, however, been amended in the Council text, which provides for a similar mechanism for reinstatement of the internal borders as under article 26 of the  Schengen  Borders  Code.

– The unqualified obligation to make border guards available for rapid border  interventions and the ‘right to intervene’ under the Commission’s proposal arguably contravene the Member States’ ultimate responsibility for internal security  under the Treaties (Article  4(2) TEU and  Article  72 TFEU).

Expansion  of tasks  and  powers  of  guest  officers

Guest officers’ powers may be considerably broadened by the host Member State, allowing these officers to act on its behalf. Guest officers would also have automatic access to European  databases. The proposal  should:

– Clearly state that guest officers act at all times within the scope of EU law and hence  within the  scope of the Charter of Fundamental Rights.

– Clearly state that, to the extent that national powers are delegated to guest officers, these officers should be considered to act as agents of the host Member State for the purpose of  determining  international responsibility.

 Hotspot  approach

The proposal gives the Agency a key role in the hotspot approach.

This is problematic as it seems to contradict the multi-agency purpose and nature of the hotspot approach, risking a one-sided focus on border control.

The Commission is thus much better placed to coordinate the activities  of  the Migration  Management  Support  Teams.

-The hotspot approach and its legal and operational framework require prior definition, preferably in a separate legal framework, before making the Agency responsible for its functioning.

– If the Agency were to take primary responsibility for the hotspots, a reference to international protection should be included in the concept of integrated border  management.

Return  cooperation

The Agency would gain significant operational powers in the area of return with three new on-call lists of Member State officials: forced return monitors, forced return experts and return specialists.

The proposal provides for three types of return operations: return from a combination of Member States organised and carried out by the Member States and coordinated by Frontex; collecting return operations where the means of transport and return escorts are made available by a third country; and mixed return operations, where a number  of returnees  are transported   from  one third  country  to  another.

There are a number of important concerns as regards the provisions on return that need to be  addressed.  It  is  important to:

– Detail the tasks, powers and responsibilities of these officials. Attention should be paid to the specific legal regime  applicable  on board aircrafts.

– Extend reporting obligations to return operations and include a role for the Agency’s Fundamental Rights  Officer.

– Allow for collecting return operations only if the third country concerned is a party to  the European Convention on Human Rights (ECHR).

– Allow for mixed return operations only if there are sufficient guarantees that the            third country’s            return  decision           and            procedures      comply            with     EU fundamental rights standards.

Information  exchange  and  data  protection

The proposal would transform the Agency into the central hub of information exchange of the EBCG, expanding its powers to collect and transmit data not only on people suspected of cross-border crime, but on irregular third country nationals.

This requires sufficient data protection rules. As pointed out by the European Data Protection Supervisor (EDPS), the proposal   has important  flaws  in  this regard  and  requires  clarification.

The proposal  should:

– Clearly distinguish between the different purposes for which data is processed, because migration management and criminal law enforcement are covered by separate legal regimes.

– Exhaustively   list  the purposes for  which  data  may be processed.

– Indicate not only the categories of people whose data may be processed, but also specify which data may be processed.

– Clearly distinguish between the transfer of data to third parties within and outside the European  Union.

Operational  cooperation with  third  countries

The proposal would allow for joint operation activity on the territory of third countries. Cooperation with third countries should not allow the Agency and EU Member States to lower  EU  standards.

As  such:

– Cooperation should be limited to third countries that are party to the ECHR and

the Geneva Convention and  its Additional  Protocol.

– The safeguard whereby liaison officers may only be posted to countries with human  rights-compliant  border practices should be reintroduced.

Coastguard

The provisions on the role of the Agency and the Member States in a European Coast Guard are the least developed part of the proposal and are largely limited to an obligation to exchange information. It is therefore important to clarify the extent to which this may involve  the  processing of  personal  data.  Furthermore, it  is important:

– To clarify the relationship between the military and the Agency in maritime border surveillance operations       and      any      other Member            State    military involvement in integrated  border management.

– To include Search and Rescue provisions to allow the Agency to play a more active SAR role  without affecting the international SAR framework.

Constitutional   considerations

It is submitted that, under the current rules on delegation of powers to Union bodies, it is not possible to delegate genuine executive powers to the EBCGA.

The Commission proposal respects these limits. Nonetheless, the removal of the ‘emergency situation’ exception for the deployment of human and technical resources, as well as the ‘right to intervene’, are at odds with the Treaty principle of ultimate responsibility of the Member States for their own internal  security. Moreover:

– Careful consideration should be given to which decisions are politically sensitive and should be reserved for the Management Board and which are more  technical and  operational  and  should be left to  the Executive Director.

Fundamental  rights considerations

The significant reinforcement of the tasks of the Agency without the transfer of genuine executive powers to the Agency (for the reasons set out above), as well as the explicit affirmation of a shared responsibility for European integrated border management, will only exacerbate  the existing conundrum as  regards shared  accountability.

While the introduction of an individual complaints mechanism is an important positive development, the Commission’s assertion that the mere existence of such a mechanism makes the Agency’s actions fundamental rights-compliant is clearly exaggerated.

Indeed, the  proposed  fundamental   rights mechanisms require  further  refinement:

– The complaints procedure provisions must lay down rules on format, content and deadlines or should empower the  Agency to   set such rules.

– The Executive Director’s obligation to suspend or terminate operations in the event of fundamental rights violations should be further detailed and should provide for a role for the FRO and take into account the results of relevant monitoring mechanisms.

– The obligation for the Agency to set up a fundamental rights monitoring mechanism – with a broad review of fundamental rights at the external border – should  be  reintroduced.

– The FRO’s obligation to report to the Consultative Forum should be reintroduced.

Continue to the FULL STUDY

 

 

 

MEIJERS COMMITTEE : Notes on an EU Proposal for a Directive on combating terrorism

ORIGINAL PUBLISHED HERE (16 March 2016) (emphasis in the text below are added)

The Meijers Committee would like to comment on the European Commission’s proposal for a Directive on combating terrorism,1 partly in light of the proposals made in the Council’s General Approach of 3rd of March 2016 and the European Parliament’s LIBE Committee’s draft report of 10th of March 2016.

The Meijers Committee holds that the proposal is insufficiently substantiated, that it extends the scope of criminal law too far and compromises fundamental rights. 1.

The Meijers Committee wishes to express its support for the idea of reviewing existing EU criminal law instruments in the field of counter-terrorism. A review of the 2002 Framework Decision (as revised in 2008) offers an excellent opportunity to take a critical look at its provisions in light of the ambitions of the European institutions regarding a coherent criminal policy.

In this regard, the Meijers Committee recalls that in recent years the European Commission, the Council and the Parliament have clearly expressed themselves in favour of developing EU-level criteria for the criminalization of behaviour.2 The underlying idea is to create a coherent EU criminal law system that avoids unnecessary and unclear criminal law offenses in EU instruments. 2.

Moreover, the Meijers Committee wonders how the proposed directive relates to the European institutions’ laudable initiatives on de-radicalisation, disengagement and rehabilitation of (potential) ‘foreign fighters’ and returnees – e.g. the European Commission has stated in this regard that prosecution can have adverse side-effects: ‘the threat of prosecution may discourage certain individuals from returning who would otherwise be valuable sources of intelligence or be persuaded to de-legitimise terrorist groups and actively support counter-narratives among their peers. Also, if aspiring foreign fighters are likely to be prosecuted, their relatives may be more reluctant to alert the authorities to signs of radicalisation and preparation.‘3 Moreover, prisons can become breeding grounds for further radicalisation and many EU prisons are currently overcrowded. In the view of the Meijers Committee, discussions about broadening the scope of the criminal law should be fully coordinated with these meaningful initiatives in order to achieve ‘better regulation’.

3. Unfortunately, the opportunity to develop criminal law on terrorism in line with these considerations is not taken up in the current proposal. For instance, in its Conclusions on model provisions guiding the Council’s criminal law deliberations, the Council held that ‘criminalisation of a conduct at an unwarrantably early stage‘ should be avoided – yet this aspect is particularly problematic in the current proposal. It creates a far-reaching extension of the scope of Member States’ criminal law obligations in the field of terrorism that takes these obligations even further into the preparatory phase of possible harmful conduct.

4. It is notable that the European Commission has chosen not to conduct an impact assessment of the proposed directive, ‘given the urgent need to improve the EU framework to increase security in the light of recent terrorist attacks including by incorporating international obligations and standards’. The legislative process so far also gives the general impression that legislation is being rushed through, without looking at the serious societal impacts that it could have. The Meijers Committee is of the opinion that such a rushed procedure does not do justice to the importance of a balanced legal response to terrorism, especially since the proposal concerns far-reaching powers under criminal law that can be exercised at a very early stage and that can have a serious impact on people’s lives. Legislation in the field of counterterrorism (including EU legislation4 ) is all too ofen characterized by short-term thinking and a lack of legislative scrutiny, whereas the new, far-reaching powers are then retained for a considerable time, sometimes also being used outside the counter-terrorism context. According to the Meijers Committee, the European institutions should make a joint effort to avoid falling into such traps and to engage in a profound, careful consideration of these proposals and a serious investigation of the functioning of existing instruments (not being limited to operational aspects but also looking at the effects of measures on fundamental rights and possible adverse side-effects). The fact that international obligations in this area have already been adopted does not discharge the EU legislature of the obligation to make its own critical assessment of these measures, especially since these existing international obligations have been adopted without much democratic oversight and scrutiny.

5. The Meijers Committee is of the opinion that the Commission’s proposal is only weakly substantiated. It is stated that ‘More coherent, comprehensive and aligned national criminal law provisions are necessary across the EU to be able to effectively prevent and prosecute foreign terrorist fighters-related offences and to respond in an appropriate manner to the increased cross-border practical and legal challenges.’ However, the Commission provides no sources nor does it explain why the current instruments are insufficient and ineffective; neither does it give examples of situations that cannot be tackled at the present time. The proposal mentions ‘loopholes’ and ‘enforcement gaps’, but does not specify them and does not delve into the causes. It is the view of the Meijers Committee that such far-reaching proposals require a firmer basis. The focus should be on the effective use of existing powers and ways by which Member States can collaborate, e.g. in the area of information exchange, rather than creating new rules – something that is also required by the proportionality principle (art 5 TEU).

6. All EU Member States have bound themselves to the obligation to respect fundamental rights. That is also the case in regard to the implementation of obligations to criminalize behavior. It is worrying that the text of the proposed directive makes no reference to fundamental rights whatsoever (except in the preamble), whereas the Framework Decisions do. The Meijers Committee holds that the directive itself should clearly outline the obligation to respect fundamental rights. In particular, there is a risk that implementation of the measures envisaged will in practice encroach upon the right to non-discrimination by disproportionately targeting Muslims. The offenses may be neutrally formulated, but considering the reasons and objectives outlined in the explanatory memorandum, the instrument seems to be particularly geared towards jihadism. In the proposal, only recital 20 states rather weakly that implementation ‘should exclude any form of arbitrariness or discrimination.‘ The Meijers Committee proposes that the text of the directive itself provide for clear and strong guarantees against discrimination.

6a. The Council’s proposal to refer to media freedom in Article 21bis is an improvement of the Commission’s proposal. The Meijers Committee proposes to add a reference in the text to freedom of expression in general as well as other fundamental rights that are at stake, including freedom of religion, non-discrimination and freedom of movement, and to specify requirements for the restriction of these rights in the context of specific offenses. This also means that the elements of the separate offenses included should be restricted in such a way as to ensure that implementation does not risk encroaching on these fundamental rights (as specified below).

7. The broad definition of terrorism is unaltered in the proposal. Amongst other things, attacks against the military and military infrastructure of dictatorial regimes are included in the definition. In its outcome document on the 2002 Framework Decision, the Council stated that the instrument ‘covers acts which are considered by all Member States of the European Union as serious infringements of their criminal laws committed by individuals whose objectives constitute a threat to their democratic societies respecting the rule of law and the civilisation upon which these societies are founded. It has to be understood in this sense and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as “terrorist” acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their fundamental right to manifest their opinions, even if in the course of the exercise of such right they commit offences.’5 The Meijers Committee holds that this fundamental dilemma deserves renewed consideration by the European legislature and that the outcome of such considerations should be clearly laid down in the text of the directive.

7a. This definition can lead to unjust results, especially in combination with a broad array of preparatory offenses. For instance, incitement to attacks against the military infrastructure of dictatorial regimes, and glorification of such attacks, would also be prohibited. The proposed directive contains no guarantees to prevent such criminal offences from being used arbitrarily or inconsistently, whereas the risk is certainly present. 8. As indicated above, the Council (in light of the debate about criteria for criminalization) has stated that ‘criminalisation of a conduct at an unwarrantably early stage’ should be avoided; ‘conduct which only implies an abstract danger to the protected right or interest should be criminalised only if appropriate considering the particular importance of the right or interest which is the object of protection.‘6 The definition of criminal offenses should be clearly delineated, as required by the legality principle (article 49 EU Charter of Fundamental Rights). It is the view of the Meijers Committee that this also implies that the definition should be so strict that the behavior to be criminalized is not too far removed from the potential harm (from the potential terrorist attacks themselves), and such harm should actually be intended. In this regard, several proposed offenses are problematic (as indicated below). For now, it is important to note that the proposal offers unprecedented opportunities to cumulate offenses – e.g. inciting the distribution of a message to the public with the intent to incite the commission of a terrorist offense (art. 16(2) / art. 5), and inciting the financing of training for terrorism (art. 16(2) / art. 11 / art. 8). Moreover, the proposal would oblige Member States to criminalize ‘aiding and abetting the soliciting of another person to participate in the activities of a terrorist group, including by supplying information or material resources, or by funding its activities in any way‘ (art. 16 lid 3 / art. 6 / art. 4 sub b). This enlarges the scope of the criminal law even further and can lead to absurd situations.

8a. It is important to keep in mind that, in common with substantive criminal law, criminal procedural law in the field of counter-terrorism often also extends further into the preparative phase than ‘normal’ criminal procedural law. In the Netherlands, for instance, ‘indications’ of an offense (rather than a reasonable suspicion) are sufficient to deploy certain procedural powers. Thanks to the combination of broader substantive and procedural law provisions, the government can act at an extremely early stage. Many of the offenses in the proposed directive do indeed target acts that would otherwise be considered ‘normal’ innocent behaviour, such as taking a chemistry course or buying fertilizer. Thus, because the actus reus cannot make the difference, a person’s alleged intention (mens rea) plays an even greater role, and in the field of terrorism there is a greater risk that the authorities may derive such an intention (in part) from ideologies and/or religious beliefs. In the current societal context, that means that there is a genuine risk that Muslims will be disproportionately targeted in practice.

9. With regard to Article 2(d), the Meijers Committee wonders what is meant by a ‘structured group’ that ‘does not need to have (…) a developed structure.’

10. The proposed article 15 states that for an offence referred to in Article 4 and Title III to be punishable, it shall not be necessary that a terrorist offence be actually committed, nor shall it be necessary to establish a link to a specific terrorist offence (or, regarding articles 9 to 11, to specific offences related to terrorist activities). In the explanatory memorandum this is explained as follows: ‘For instance, for the criminalisation of the recruitment to terrorism it is not necessary that the person is solicited to commit a specific terrorist offence or that the person providing training for terrorism instructs a person in the commission of a specific terrorist offence. In the same spirit, for the criminalisation of the financing of terrorism, it is sufficient that there is knowledge about the use of the funds for purposes furthering the terrorist activities in general without there being a need to be linked to for instance a specific already envisaged travel abroad.’

The Meijers Committee is of the opinion that this addition to article 15 (which is not included in the Framework Decision) stretches the relationship between behaviour and potential harmful consequences too far; no such relationship is required at all. In fact, the Meijers Committee holds that the requirement that the behaviour in question poses a real danger of possible terrorist offences is important for preparatory offences in general. If the conduct described is capable of creating harm in exceptional situations, the prohibition should be limited to those exceptional situations. With regard to article 8 (receiving training) such a requirement is referred to in the explanatory memorandum; in article 5, a requirement to this end is laid down in the text itself. The Meijers Committee recommends, having regard to article 8 and the other offences in the directive, that the relationship between behaviour and possible harm should be more clearly expressed in the text.

11. Although it is positive that article 5 contains a ‘danger’ criterion, the Meijers Committee considers that an even stricter criterion is needed to limit the scope of the provocation offence, since the right to freedom of expression is so clearly at stake here. In its current form, the offence potentially criminalizes sympathizers with the ideology underlying terrorist groups, but who do not necessarily accept the violence as such; it could thus make non-violent resistance suspect and thereby be counterproductive. Moreover, because the definition of terrorism in the proposed directive is so broad, discussions of possible justifications for violent resistance in exceptional circumstances are also criminalised: in a free society, such debates should not be settled by criminal law. With all of the opportunities offered for the cumulation of offences, the risk of creating a ‘chilling effect’ on freedom of speech is even greater, e.g. criminalizing the financing of the propagation of such ideologies. The offense should be further restricted, e.g. by requiring a ‘serious and actual danger’ and/or as the LIBE draf report states a ‘clear and substantial danger’, or by reviving the Parliament’s proposal with regard to the 2008 revision of the Framework Decision to limit the article to ‘conduct that clearly and intentionally advocates the commission of a terrorist offence where such conduct manifestly causes a danger that such offences are committed’.

11a. The proposal is also problematic in that it explicitly criminalises indirect provocation. Especially in combination with the preamble, which states that ‘The offenses related to public provocation to commit a terrorist offence act comprise, inter alia, the glorification and justification of terrorism or the dissemination of messages or images including those related to the victims of terrorism as a way to gain publicity for the terrorists cause or seriously intimidating the population’, this recital leads to a disproportional infringement of freedom of expression including the freedom of the press and should be renounced. The explanatory memorandum states that ‘Such messages and images may also include those denigrating victims of terrorism, including their families’, which makes the offence even less clear: some Member States may interpret this as meaning that, even if there is no real danger of future offenses, offense to victims and their families is sufficient reason to criminalize expressions.

The text proposed in the Council, which specifically mentions glorification of terrorism in the text of the directive, is even more problematic – as is the LIBE draf report’s addition of the words ‘or glorify’: the Meijers Committee strongly believes that these proposals should be renounced. Instead, the directive should explicitly exclude glorification or justification of terrorism from its reach, because it is particularly with these types of prohibitions that the risk of encroaching upon freedom of expression is very high. Moreover, the proposal to change the text to ‘advocates the commission of terrorist offences thereby causing a danger‘ is a significant step back in terms of freedom of expression: it could be interpreted so as to mean that advocating the commission of terrorist offenses (whether directly or indirectly, including by glorification) automatically causes a danger. This would make the ‘danger’ requirement ineffective and superfluous. The safeguard that the Council proposes in recital 20A (‘Nothing in this Directive should be interpreted as being intended to reduce or restrict the dissemination of information for scientific, academic or reporting purposes. The expression of radical, polemic or controversial views in the public debate on sensitive political questions, falls outside the scope of this Directive and, in particular, of the definition of public provocation to commit terrorist offences’) should, in the view of the Meijers Committee, be included in the text of the directive itself.

11b. The Meijers Committee further believes that the Council’s addition to recital 7 – ‘it seems appropriate for Member States to take measures to remove or to block access to webpages publicly inciting to commit terrorist offences. Where such measures are taken, they must be set by transparent procedures and provide adequate safeguards, in particular to ensure that restrictions are limited to what is necessary and proportionate’falls outside the scope of this instrument and creates a particularly pressing risk for freedom of expression and freedom of the internet, especially since the proposal does not oblige involvement of the judiciary in such blocking measures.

12. The proposed articles 7 and 8 refer to providing and receiving training ‘for the purpose of committing of or contributing to [in article 8: the commission of]’ one of the terrorist offences mentioned. The Meijers Committee recommends specifying what is meant by ‘contributing to [the commission of]’ these offences and why this addition is necessary. Moreover, it is advised that the text of article 8 makes it clear that active participation in the training is required and that ‘the mere fact of visiting websites containing information or receiving communications, which could be used for training for terrorism, is not enough’ as the explanatory memorandum states.

13. The need for and proportionality of the proposed new criminal offences of travelling abroad for terrorism and organising or otherwise facilitating such travel (articles 9 and 10) are not sufficiently demonstrated, also in light of existing criminal offences in the Member States and other legal options, such as taking passports.

Moreover, the Meijers Committee considers that these articles are too loosely defined for such far-reaching restrictions of the right to liberty of movement, which entails the right to leave any country including one’s own (Article 2, Fourth Protocol to the ECHR). Article 9 refers to travelling abroad ‘for the purpose of the commission of or contribution to a terrorist offence referred to in Article 3 (…)’. The wording ‘or contribution to’ makes the offence excessively broad and unclear: there is no explanation of what this could entail. Moreover, the Meijers Committee considers the criminalisation of travelling abroad to participate in the activities of a terrorist group particularly far-reaching, as the offence of article 4 in itself is already quite broad. Article 10 includes the term ‘otherwise facilitating’; according to the Commission this ‘is used to cover any other conduct than those falling under “organisation” which assists the traveller in reaching his or her destination. As an example, the act of assisting the traveller in unlawfully crossing a border could be mentioned.’ This makes the provision very broad and unclear. Although the organisation or facilitation needs to be committed intentionally and ‘knowing that the assistance thus rendered is for that purpose’, apparently there is no requirement that the organiser or facilitator has the purpose of contributing to the commission of terrorist offences.

All these elements together lead to a greatly expanded scope of criminal liability for an otherwise ordinary activity – travelling abroad. Almost everything will thus come down to the alleged purposes of the traveller, an assessment that is lef to domestic law. Some Member States will be able to interpret this very broadly, e.g. judging that travelling to a certain ‘suspect’ region will in principle be sufficient to prove a terrorist purpose.

Thus, there is a risk of reversing the burden of proof, which will prove especially problematic for humanitarian organisations and journalists. Should the offences be adopted, the Meijers Committee holds that it is at least absolutely necessary that they are limited to travelling outside the EU. Moreover, The Meijers Committee concurs with the LIBE committee’s draf report that ‘the act of travelling should be criminalised under very specific conditions and only when the intention of doing so for a terrorist purpose is proven by inferring, as much as possible, from objective, factual circumstances’; such specific guarantees should be included in the text itself.

14. The Meijers Committee is not convinced of the need to establish jurisdiction for non-EU nationals who provide training for terrorism to nationals or residents abroad, as proposed in Article 21 (1)(d). There should be particularly compelling reasons for establishing such a far reaching ground for jurisdiction, especially where offences in the preparatory stage are concerned. The Commission, in the view of the Meijers Committee, has failed to demonstrate such compelling reasons. It is also highly questionable whether this form of jurisdiction will actually be used in practice.

15. The Council proposes to include a specific provision on investigative tools. According to the Meijers Committee, this falls outside the scope of the directive. The same is true of the LIBE draf report’s proposal on ‘asset freezing’ in Article 11a. That said, the breadth of criminal procedural powers in the field of terrorism is certainly something that the European legislature should be concerned about, but not just from a law enforcement perspective; rather, the balance between effective investigations and fundamental rights requires more careful consideration. This is particularly pressing with regard to offences, such as those contained in the proposed directive, where evidence gathering may be difficult because they are committed in third countries with worrying human rights records. Moreover, the relationship between criminal (substantive and procedural) counter-terrorism law and other fields of counter-terrorism law should be borne in mind when drafing this directive. For example, some states have adopted or proposed far-reaching administrative law measures, such as removing a person’s nationality after that person has been convicted of terrorist offences (or even in the absence of a criminal conviction). According to the Meijers Committee, the European legislature should consider how the current proposal relates to such initiatives

 

NOTES

1 2 December 2015, COM(2015) 625 final.
2 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 Nnovember 2009; European Parliament, Resolution ‘An EU approach to criminal law’, 22 May 2012 (2010/2310(INI)); European Commission Communication ‘Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law’, 20 September 2011, (COM(2011)0573).
3 European Commission, Background document to the High-Level Ministerial Conference ‘Criminal justice response to radicalisation’, 19 October 2015, Brussels, p. 2.
4 SECILE Consortium, led by Professor Fiona de Londras, Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness. Final report summary, 2015, http://cordis.europa.eu/result/rcn/164039_en.html.
5 Outcome of the proceedings, 7 December 2001, 14845/1/01 Rev. 1, Draft Council Statement.
6 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations, 2979th JHA Council meeting, 30 November 2009, par. 5.

(*) About
The Meijers Committee is an independent group of legal scholars, judges and lawyers that advises on European and International Migration, Refugee, Criminal, Privacy, Antidiscrimination and Institutional Law. The Committee aims to promote the protection of fundamental rights, access to judicial remedies and democratic decision-making in EU legislation. The Meijers Committee is funded by the Dutch Bar Association (NOvA), Foundation for Democracy and Media (Stichting Democratie en Media) the Dutch Refugee Council (VWN), Foundation for Migration Law Netherlands (Stichting Migratierecht Nederland), the Dutch Section of the International Commission of Jurists (NJCM), Art. 1 Anti-Discrimination Office, and the Dutch Foundation for Refugee Students UAF. Contact info: post@commissie-meijers.nl +31(0)20 362 0505 Please visit http://www.commissie-meijers.nl for more information.

 

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 …

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

WORTH READING : BACK TO SCHENGEN. AN EUROPEAN COMMISSION’S ROADMAP

See notably the section dealing with the possible triggering of art.26 mechanism foreseen in the Schengen border Code.

It is almost unfortunate (and surprising) that when all these mechanisms were negotiated in codecision the European Parliament did’nt asked to be associated to such an important decision for the freedom of movement of EU Citizens and the smooth functioning of the internal market.. Once again, it is depressing to see that notwithstanding the Lisbon Treaty and of the Charter have widened the EP powers (and responsibilities) the latter still prefers to hide behind the decisions of european and national bureacrats and diplomats… (NB emphasis to the Commission Communication are added)   

EDC

The original European Communication on March 4 (COM (2016)00120) to the European Parliament, the European Council and the Council is accessible HERE .  The annexes  describing the current situation in the EU Ms are accessible HERE  (*)  

  1. Introduction

Schengen is one of the major achievements of European integration. The creation of an internal area without borders where persons and goods can circulate freely has brought important benefits to European citizens and business alike. Schengen is one of the key means through which European citizens can exercise their freedoms, and the internal market can prosper and develop.

Yet in recent months the system has been shaken to its core by the scale of the challenge of facing up to the largest refugee crisis since the Second World War. The conflict and crisis in Syria and elsewhere in the region have triggered record numbers of refugees and migrants arriving in the European Union, which in turn has revealed serious deficiencies at parts of the Union’s external borders and resulted in a wave-through approach applied by some Member States. This has led to the creation of a route across the Western Balkans which sees migrants travelling swiftly north. In reaction, several Member States have resorted to reintroducing temporary internal border controls, placing in question the proper functioning of the Schengen area of free movement and its benefits to European citizens and the European economy. Restoring the Schengen area, without controls at internal borders, is therefore of paramount importance for the European Union as a whole.

This was recognised by the European Council of 18/19 February which gave a clear mandate to restore, in a concerted manner, the normal functioning of the Schengen area while giving full support to Member States in the most difficult circumstances.[1]

Actions are needed in three areas to bring the Schengen system of border management back to normality. First, steps must be taken to remedy the serious deficiencies that were identified in the management of the external border by Greece. Member States, EU Agencies and the Commission should all assist Greece in this regard. Second, the wave-through approach must end. Member States must take their responsibilities and comply with EU law, both in terms of granting access to the asylum procedure for persons requesting asylum and in terms of refusing entry at the border to persons who do not satisfy the entry conditions; under EU law, asylum seekers have no right to choose the Member State granting them protection. Third, the current patchwork of unilateral decisions on the reintroduction of border controls needs to be replaced with a coordinated approach to temporary border controls, with the aim to subsequently lift all internal border controls as quickly as possible and with a clear target date of December 2016. The Schengen Borders Code expressly provides for such a coordinated approach.

The current crisis has also underlined the close structural links between border management and related areas. The absence of internal border controls should go hand in hand with the framing of a common policy on asylum, immigration and external border control, based on solidarity between Member States, and which is fair to third-country nationals[2]. It is therefore essential that the European Border and Coast Guard is agreed and legally adopted by June at the very latest so that it can start functioning during the summer, to ensure that the European Union can deliver on the joint responsibility of protecting the external border. Moreover, related challenges beyond border control need to be addressed in order to create the confidence needed to restore the full functioning of the Schengen area, as set out in the Commission’s Communication of 10 February[3]. This includes in particular a substantial reduction in the flow of irregular migrants to Greece, by working with Turkey to fully implement the Joint Action Plan, and with the support of NATO. The full application of the existing Dublin rules must be progressively restored, with the full participation of Greece, in line with the Commission’s recommendation of 10 February[4], whilst improving these rules for the future based on the objective of solidarity and fair burden-sharing between Member States. The emergency relocation schemes already in place since September 2015 must deliver concrete results in terms of meaningful volumes of persons relocated from Greece. Those persons who have no right to stay in the European Union must be effectively returned.

Taken together and in a coordinated way, these measures will lay the foundations for a return to a normally functioning Schengen area at the latest by the end of 2016. This roadmap sets out the steps that need to be taken in order to achieve this objective.

  1. The costs of non-Schengen

 The reintroduction of internal border controls on a sustained basis within the EU would not solve the challenges of the migration crisis, yet it would entail huge economic, political and social costs for the EU and the individual Member States. It would also risk putting in jeopardy the judicial and police cooperation that has become one of the key elements of added-value arising from the Schengen system.

The stabilisation of the Schengen system through the use of its safeguard mechanisms is essential in order to ensure the subsequent lifting of all internal border controls. To fail to do so would not only deprive people of the huge benefits of free movement across borders, but it would impose major economic costs on the EU economy as a whole by damaging the Single Market.[5] From an economic perspective, the Commission has estimated that full re-establishment of border controls to monitor the movement of people within the Schengen area would generate immediate direct costs for the EU economy in a range between €5 and €18 billion annually[6]. These costs would be concentrated on certain actors and regions but would inevitably impact the EU economy as a whole.

The free exchange of goods within the EU currently accounts for more than €2,800 billion in value and 1,700 million tonnes in volume. The highest and most immediate impact of border controls would be felt by the road haulage sector, with an additional €1.7 to €7.5 billion of additional direct cost each year. Member States such as Poland, the Netherlands or Germany would face more than €500 million of additional costs for the road transport of traded goods while others such as Spain or the Czech Republic would see their businesses paying more than €200 million in additional costs. These costs will have a particularly harmful impact on those sectors that operate on small margins and/or where transport presents a high percentage of the costs. Sectors that could be particularly affected include the agricultural sector and the chemical sector as well as the transport of raw materials. In the medium term, costs of transportation that are unduly increased by delays in border controls could hurt the efficient development of EU value chains and the competitiveness of the EU economy as a whole.

There are 1.7 million workers in the EU crossing a border every day to go to their jobs. Border controls would cost commuters and other travellers between €1.3 and €5.2 billion in terms of time lost. More importantly, long waits at the border would discourage people from looking for cross-border opportunities in the labour market, reducing the pool of potential workers. This would in the medium term reduce the economic efficiency of some regions.[7]

The Commission estimates that at least 13 million tourist nights could be lost in the EU due to the reduction of intra-Schengen tourist trips caused by cumbersome border controls, with a total cost of €1.2 billion for the tourism sector.  If border controls also bring a fragmentation of the EU’s common visa policy, the potential impact for the tourism industry could multiply (between €10 and €20 billion). Travel agents trying to minimise the number of countries visited by lucrative long distance tourists such as Asian tourists would hurt all but the most popular EU tourist destinations.

Finally, between €0.6 and €5.8 billion of administrative costs would have to be paid by governments due to the need for increased staff for border controls. Investment in the necessary infrastructure would add several billions.

The costs detailed above, mostly reflect direct first order effects of border controls. The medium term, indirect costs may be considerably higher with unprecedented impact on intra-community trade, investment and mobility.

From the citizens’ perspective, the reintroduction of border controls within the EU would damage the freedom of citizens to travel, which is one of the most cherished accomplishments of the EU. It would risk destroying one of the central achievements of European integration and the construction of a shared European space.

  1. Ensuring the protection of the external borders

The unprecedented migratory and refugee crisis has led to severe difficulties in several Member States in ensuring the efficient external border controls in accordance with the Schengen acquis and in the reception and processing of arriving migrants.  Greece is, mainly due to its geographical situation, particularly affected by these developments due to a shift in migratory flows with the result that the Aegean Sea has become the most exposed area for irregular migration. In 2015, more than 868 000 persons entered into the Schengen area irregularly through this section of the external border. This massive inflow is of a nature that would put the external border control of any Member State under severe pressure.  However, it does mean that there is an immediate need to address the current shortcomings in the protection of the external border by and in Greece. This is primarily the responsibility of Greece, but ultimately of the entire Union. Greece’s external borders are also the external borders of each member of the Schengen area. Restoring a strong external border in Greece is an indispensable part of wider efforts to stabilise the asylum, migration and border policy in Greece, including the aim to bring Greece back into the Dublin system.[8]

Wider structural deficiencies in the way that the Union’s external borders are currently protected have become evident in the current crisis. To address them, the Commission presented an ambitious proposal for a European Border and Coast Guard in December 2015. It is crucial that the co-legislators, the European Parliament and the Council, adopt the proposed Regulation without delay, by June at the very latest, in order for it to start functioning during the summer to ensure a high level of external border protection. To that end:

  • Member States should already now start the necessary preparations for the mandatory pooling of resources.
  • In the meantime, Member States should voluntarily step up the support provided to Frontex joint operations and rapid border interventions, in particular at present in Greece.
  • Within the limits of its current mandate, Frontex, in coordination with the European Fisheries Control Agency and the European Maritime Safety Agency, should also take all possible steps to prepare the setting up of the European Border and Coast Guard. In particular, Frontex should take preparatory steps to enable the European Border and Coast Guard, once operational, to immediately conduct the first vulnerability tests under the proposed risk assessment and prevention mechanisms and complete them by September at the latest. This is in particular relevant since migration routes might change and all sections of the EU external borders should be secure.
  • Addressing the deficiencies in the external border management in Greece

The Commission adopted a Schengen evaluation report on 2 February 2016, based on unannounced on-site visits to the Greek-Turkish land border and to the islands of Chios and Samos conducted from 10 to 13 November 2015. As a result, the Council adopted on 12 February 2016 a set of 50 recommendations to Greece to remedy serious deficiencies in external border management.[9] The recommendations concern in particular the identification, registration and fingerprinting of irregular migrants and sea border surveillance.

The Schengen Evaluation Mechanism and the Schengen Borders Code set out a clear procedure to address the serious deficiencies identified.

While recognising the improvements already made since the on-site visit in November 2015, the Commission adopted on 24 February 2016 an implementing decision setting out recommendations on specific measures to be taken by Greece, as provided for in the Schengen Borders Code.[10] These measures are designed with a view to ensuring full compliance by Greece with the recommendations of the Council. The implementation of these measures would serve the purpose of ensuring adequate border surveillance (including detection and apprehension), as well as correct and full identification, registration and reception of third-country nationals who crossed the external border irregularly, and return of those not in need of protection. This also applies to stepped-up exit controls at the border between Greece and the former Yugoslav Republic of Macedonia. In this way, these measures would safeguard the proper functioning of the Schengen area as a whole.

Within the framework set out by the Schengen Borders Code, the following steps will need to be taken to return to the orderly application of the Schengen rules in the protection of the external borders in Greece:

  • 12 March 2016: Greece should provide its action plan (required at the latest one month from adoption of the Council recommendations). By the same date (and then monthly), Greece should report to the Commission on the progress in the implementation of the Commission’s recommendations of 24 February 2016.
  • 12 April 2016: after consulting the Member States’ experts involved in the on-site visits in November 2015, at the latest one month after the presentation of the action plan, the Commission will present its assessment of the adequacy of this action plan to the Council. The other Member States shall be invited to comment on the action plan.
  • 11-17 April 2016: a Schengen evaluation carried out by Member States’ experts and the Commission of air, land and sea borders of Greece will take place[11]. The programme for the evaluation of land and sea borders includes some of the locations visited in November 2015 (land border with Turkey and Samos Island). The information gathered during this evaluation visit will be available within days after the visit.
  • 12 May 2016: at the latest by this date, Greece has to report on the implementation of the Council recommendations.

 The Commission will, on the basis of all the information at its disposal, assess without delay whether Greece meets its obligations under the Schengen Borders Code and to what extent the serious deficiencies in external border management in Greece have been remedied.

  • Immediate support for Greece

 The difficulties that Greece faces in the protection of the external border have an impact on the European Union as a whole. It is therefore necessary that other Member States show solidarity and collectively take responsibility for addressing the situation. EU Agencies and the Commission should also assist Greece. More precisely, Member States, EU Agencies and the Commission should support Greece in implementing the Recommendations made to Greece by the Council and the Commission[12] with regard to the following steps:

  • Commission experts on the ground in Greece should continue to cooperate closely with the responsible Greek authorities and to coordinate the action of the other actors involved (Frontex, the European Asylum Support Office, Europol, national authorities of other Member States, international organisations). Among the actions, there should be 100% identification and registration of all entries, including systematic security checks against databases[13].
  • When presenting its action plan (no later than 12 March), Greece should in parallel present a clear needs assessment. This will allow other Member States, EU Agencies and the Commission to provide timely support to Greece according to the needs identified.
  • Frontex should immediately assess Greece’s needs assessment to prepare the further deployment of European Border Guard teams. If needed, Frontex should launch additional calls for contributions by 22 March at the latest.
  • Other Member States should then assume their responsibility and respond to these calls within 10 days at the latest, by providing human resources and technical equipment.
  1. Applying the rules and stopping the wave-through approach

 Stopping the wave-through approach and restoring Dublin transfers to Greece

A wave-through approach is neither politically nor legally acceptable. Politically, the conclusions adopted by the European Council at its meeting on 18 and 19 February call for “an end to the wave-through approach”. Instead of unilateral decisions, the agreed approach for better cooperation and coordination between the countries along the Western Balkans route must be implemented.

Legally, in accordance with Article 6 of the Asylum Procedures Directive[14], if a third-country national requests asylum in a Member State, including when the application is made at the border, the Member State must grant that person access to the asylum procedure. The question of whether that Member State will remain responsible for the handling of the particular application will then be decided in accordance with the relevant provisions of EU law, including in particular the Dublin Regulation.

In that regard, the Commission’s Communication of 10 February underlined that if the Common European Asylum System is to work properly, there must be a real opportunity to return asylum-seekers to the country of first entry into the EU (“Dublin transfers”), as foreseen by the commonly agreed EU rules. Therefore, the Commission also adopted on 10 February a Recommendation listing the concrete steps needed in order to bring Greece back into the Dublin system[15]. Reporting by Greece on its progress in implementing the recommended actions, as well as other inputs such as reports from the Committee of Ministers of the Council of Europe on the execution of judgments and from the UNCHR, will clarify the assessment whether the conditions are such as to allow for Member States to resume individual transfers to Greece under the Dublin Regulation, bearing in mind that the volume of transfers and the categories of persons to be transferred would need to correspond to the specific progress being made.  For its part, the Commission will carry out its assessment of the matter ahead of the June European Council.

At the same time, Member States should refuse entry at the external border to third-country nationals who do not satisfy the entry conditions provided in Article 5 of the Schengen Borders Code, including third-country nationals who have not made an asylum application despite having had the opportunity to do so. For Member States that have temporarily reintroduced controls at their internal borders, these Member States should also refuse entry at that internal border to third-country nationals who do not satisfy the entry conditions. This is irrespective of the intention of the third country national to apply for asylum in another Member State.

The wave-through approach is incompatible with Schengen and Dublin rules and encourages secondary movements and should be stopped. It also undermines the functioning of the relocation scheme, and it is thus one of the reasons for the poor implementation of the relocation decisions up to now. Therefore, stopping the wave-through approach in a coordinated way is a requirement for the functioning of the Schengen and Dublin systems, as well as the relocation scheme.

  • Helping Greece to manage migratory pressure

 In its Communication of 10 February, the Commission identified a trend along the Western Balkan route towards a gradual tightening of border controls that could ultimately result in their closure. This trend has accelerated and has led to the intermittent closure of the border between the former Yugoslav Republic of Macedonia and Greece, in part in reaction to restrictions or closures applied in other countries along the route.

As the flow of migrants into Greece has not been reduced, an increasing number of migrants are stranded in Greece. Steps should be taken as a matter of urgency to address the growing humanitarian crisis in Greece and to relieve the migratory pressure it faces:

  • The implementation of the EU-Turkey Joint Action Plan and of the voluntary humanitarian admission scheme with Turkey[16] should lead to rapid decrease in the number of arrivals in Greece; with regard to the latter, the more Member States that take part in this scheme, the better the prospects for countering illegal migration in the Aegean Sea.
  • Returns of persons with no right to stay and in no need of international protection to countries of origin and transit, including Turkey, should also reduce the number of irregular migrants present in Greece. Greece should accelerate readmissions, in particular with Turkey, on the basis of applicable existing readmission agreements and with the support of other Member States.
  • The agreed relocation schemes are essential tools to lessen the strain on the Member States under greatest pressure and to restore order to the management of migration. In the case of Greece, it has also become a tool of humanitarian assistance. Member States must step up the rate of relocation speeding up processing in line with the need to carry out proper security checks[17]. The Commission stands ready to provide administrative and logistical assistance. In line with the schemes, Member States should also take all steps to inhibit secondary movements by requiring the immediate return to the Member State of relocation and by taking the necessary preventive measures in the field of access to social benefits and legal remedies, in accordance with Union law[18].
  • Humanitarian assistance to Greece should be stepped up, and facilitated through the rapid adoption and implementation of the Commission’s proposal on the provision of emergency support within the Union.

In addition, the build-up of migratory pressure in Greece may lead to the increasing use of alternative routes through the wider Balkans region. The EU should make use of all instruments at its disposal (Member State information, EEAS, Commission, Frontex, Copernicus satellite) to monitor the migratory flows and to anticipate any changes of the route. It should also seek to intensify coordination with possible transit countries such as Albania, Montenegro and Bosnia-Herzegovina.

  1. Internal border controls: from patchwork to a coherent approach

The current situation: unilateral reintroduction of internal border controls

Since September 2015, overall eight countries of the Schengen area have reintroduced border controls at their internal borders in view of a serious threat to internal security and public policy related to secondary movements of irregular migrants. The countries concerned are Belgium, Denmark, Germany, Hungary, Austria, Slovenia, Sweden and Norway. The unilateral decisions notified by Member States refer to the influx of high numbers of undocumented or inadequately documented persons, including minors, who were not registered upon their first entry into the EU, and the fact that these massive movements stretch the reception capacities of the respective national authorities and pose a serious threat to public policy or internal security.

While the controls at the internal borders of Slovenia and Hungary have been lifted in the meantime[19], the other countries have prolonged the controls on several occasions, in line with the Schengen Borders Code.

In all eight cases the countries have based the decision on the unilateral reintroduction of internal border controls on the provision for cases requiring immediate action (Article 25 Schengen Borders Code), which allows for reintroduced controls at internal borders for a period of up to 2 months. As the situation has not improved significantly, the controls have been subsequently prolonged based on Articles 23 and 24 Schengen Borders Code, which allows for reintroduced controls at internal borders for a period of up to 6 months. For the detailed information of the dates of reintroduction of internal border controls and their prolongations, see the overview in Annex I.

France reintroduced internal border controls in November 2015 for reasons not related to irregular migration. The controls were introduced first in the context of the COP21 Conference and then in consequence of the emergency state following the Paris terrorist attacks of 13 November 2015. The internal border controls in France are currently still on-going. Such controls also need to comply with the provisions of the Schengen Borders Code on the introduction of temporary border controls. This Communication does not address internal border controls that were introduced for reasons unrelated to irregular migration.[20] It goes without saying that the intention to return to normality would not preclude the possibility to put in place justified temporary security controls, in line with the Schengen Borders Code.[21]

The reintroduction of controls at internal borders is an exceptional measure of temporary character. A combined implementation of Articles 23, 24 and 25 of the Schengen Borders Code allows for maintaining border control for a total period of up to eight months[22].

  • Towards a coherent Union approach

The Schengen Borders Code also provides for a coordinated approach of temporary internal border controls (Article 26).

This provision applies in exceptional circumstances where the overall functioning of the Schengen area is put at risk as a result of persistent serious deficiencies relating to the management of the external border. The provision also requires that those circumstances constitute a serious threat to public policy or internal security within the Schengen area or parts thereof. In such exceptional circumstances, the Commission can submit a proposal to the Council for a Recommendation that one or more Member States reintroduce border controls at all or specific parts of their internal borders.

At this moment in time, there are serious deficiencies in external border control caused by a lack of border surveillance and insufficient registration and identification of irregular migrants. As a consequence of the secondary movements triggered by these deficiencies, Member States have reintroduced internal border controls. These serious deficiencies therefore jeopardise the Schengen area as a whole, and are evidence of a threat to public policy or internal security in that area.

If the migratory pressures and the serious deficiencies in external border control were to persist beyond 12 May, the Commission therefore would need to present a proposal under Article 26(2) of the Schengen Borders Code to the Council recommending a coherent Union approach to internal border controls until the structural deficiencies in external border control are mitigated or remedied. The Commission will be prepared for this eventuality and would act without delay.

Any proposal by the Commission under Article 26 Schengen Borders Code would only propose border controls at those internal border sections where controls would be necessary and proportionate to respond to the serious threat to public policy and internal security identified. The recommended border controls would also be temporary and for the shortest possible period in view of the threat addressed. If the overall situation allows, the objective should be to lift all internal border controls within the Schengen area within six months from their introduction, namely by mid-November 2016.

The application of Article 26 Schengen Borders Code is a safeguard for the overall functioning of the Schengen area. It is not a sanction against any Member States, nor does it aim at excluding any Member State from the Schengen area.

  1. Conclusion

The Schengen system is currently severely challenged by its exposure to high migratory pressures, and hampered by serious deficiencies in external border control. These pressures and deficiencies have together put the functioning of the entire system at risk.

The challenges are multi-faceted. The Commission in its Communication of 10 February identified the different policies that need to be put in place to address the crisis in all its complexity. Based on those findings and responding to the call of the European Council to return to a situation in which all Member States fully apply the Schengen Borders Code, this Communication identifies a path back to normality based on the systematic application of the rules. Whilst the identified path cannot be viewed in isolation from other important factors, such as the successful implementation of the EU-Turkey Joint Action Plan, leading to a sustainable and material reduction in the flow of irregular migration, it is now time for Member States to pull together in the common interest to safeguard one of the Union’s crowning achievements.

To that end, the roadmap back to a fully functioning Schengen area involves the following steps:

  • 4 March 2016 (and monthly thereafter): Greece reports on its progress in implementing the actions identified in the Recommendation on resuming Dublin transfers.
  • 12 March 2016 at the latest: Greece provides its action plan to implement the recommendations made by the Council, together with a needs assessment.
  • 16 March 2016: Commission Communication on the reform of the Dublin Regulation based on the objective of solidarity and fair burden-sharing between Member States.
  • 16 March 2016: the Commission presents its First Report on Relocation and Resettlement.
  • 22 March 2016 at the latest: Frontex launches additional calls for contributions to further deploy European Border Guard teams to support Greece.
  • 1 April 2016 at the latest: Member States respond to the Frontex call by providing human resources and technical equipment.
  • 12 April 2016 at the latest: the Commission presents its assessment of the adequacy of the action plan prepared by Greece.
  • 16 April 2016: the Commission presents its Second Report on Relocation and Resettlement.
  • 11-17 April 2016: a Schengen evaluation by Commission and Member State experts of air, land and sea borders of Greece will take place.
  • 12 May 2016 at the latest: Greece reports on the implementation of the Council recommendations.
  • 12 May 2016: if the serious deficiencies in external border control were to persist, the Commission will present a proposal under Article 26(2) of the Schengen Borders Code.
  • 13 May 2016: if the serious deficiencies in external border control were to persist, the Council should adopt a recommendation under Article 26(2) of the Schengen Borders Code for a coherent Union approach to temporary internal border controls.
  • 16 May 2016: the Commission presents its Third Report on Relocation and Resettlement.
  • June 2016 at the latest: the co-legislators reach political agreement on the European Border and Coast Guard and adopt the legal act.
  • June 2016: Commission presents its assessment of the possibility of resuming Dublin transfers to Greece.
  • August 2016 at the latest: the European Border and Coast Guard is operational.
  • September 2016 at the latest: the European Border and Coast Guard has delivered the first vulnerability tests so that any necessary preventive measures can be taken.
  • December 2016: if the overall situation allows, the target date for bringing to an end the exceptional safeguard measures taken.

 

NOTES

[1]    Paragraph 8 e): “The Council adopted a Recommendation on 12 February 2016. It is important to restore, in a concerted manner, the normal functioning of the Schengen area, with full support for Member States which face difficult circumstances. We need to get back to a situation where all Members of the Schengen area apply fully the Schengen Borders Code and refuse entry at external borders to third-country nationals who do not satisfy the entry conditions or who have note made an asylum application despite having had the opportunity to do so, while taking into account the specificities of maritime borders, including by implementing the EU-Turkey agenda”.
[2]    Article 67(2) of the Treaty on the Functioning of the European Union.
[3]    Commission Recommendation on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration (COM(2016) 85 of 10 February 2016).
[4]    Commission Recommendation addressed to the Hellenic Republic on the urgent measures to be taken by Greece in view of the resumption of transfers under Regulation (EU) No. 604/2013 (C(2016) 871 of 10 February 2016).
[5]    According to France Stratégie, trade between countries in the Schengen zone could be reduced by at least 10% through the permanent reintroduction of internal border controls. Another study (Bertelsmann Stiftung Study on Departure from the Schengen Agreement. Macroeconomic impacts on Germany and the countries of the European Union, February 2016) has shown that, in the case of a reintroduction of border controls, over a period of 10 years, the economic performance of the EU as a whole would be between €500 billion and €1.4 trillion lower than without such controls.
[6]    Estimated for road freight transport, cross border passenger mobility, tourism and corresponding administrative costs at the border.
[7]    The share of cross-border commuters is particularly high in Slovakia (5.7%), Estonia (3.5%), Hungary (2.4%) and Belgium (2.3%).
[8]    See Report from the Commission to the European Parliament and the Council: Progress report on the implementation of the hotspots in Greece (COM(2016)141; 4 March 2016).
[9]    Council Implementing Decision setting out a Recommendation on addressing the serious deficiencies identified in the 2015 evaluation of the application of the Schengen acquis in the field of management of the external borders by Greece (12 February 2016).
[10]   Commission Implementing Decision setting out a recommendation on specific measures to be taken by the Hellenic Republic following the evaluation report of 2 February 2016 (C(2016) 1219 of 24 February 2016).
[11]   Commission Implementing Decision establishing the first section of the annual evaluation programme for 2016 in accordance with Article 6 of the Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis (C(2015) 8537 of 9 December 2015). It is planned that the evaluation will consist of on-sites visits to Athens, Thessaloniki and Heraklion airports (air borders), Piraeus, Mytilini Port, Samos Port, Kos Port and Symi Port (sea borders), Border Crossing Points Kipi, Pythio, Tychero, Kastanies, Fylakio, Didymoteicho, Evzonoi and Krystallopigi (land borders).
[12]   The table in Annex II provides an overview of those recommendations for which the Commission and EU Agencies should contribute to ensure their full and timely implementation.
[13]   In line with the conclusions of the European Council of 18 and 19 February 2016, paragraph 8 f).
[14]   Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
[15]   Commission Recommendation addressed to the Hellenic Republic on the urgent measures to be taken by Greece in view of the resumption of transfers under Regulation (EU) No. 604/2013 (C(2016) 871 of 10 February 2016).
[16]   Commission Recommendation for a voluntary humanitarian admission scheme with Turkey, (C(2015) 9490 of 15 December 2015).
[17]   In line with the conclusions of the European Council of 18 and 19 February 2016, paragraph 8 h).
[18]   See in this regard, for instance, the judgment of the Court of Justice of the European Union in Joined Cases C-443/14 and C-444/14 Alo and Osso of 1 March 2016.
[19]   Slovenia and Hungary did not prolong controls after 30 and 10 days respectively, in response to the decline of the identified threats.
[20]   Malta reintroduced internal border controls on 9 November in the context of the Commonwealth Heads of Government Meeting and the Valletta Conference on Migration, and subsequently prolonged these controls for reasons of a global terrorist threat and with the aim to dismantle a smuggling ring. Malta lifted the internal border controls on 31 December 2015.
[21]   For example, for the purposes of dealing effectively with the security implications of major sporting events, political demonstrations or high-profile political meetings.
[22]   Accordingly, if continued, the internal border controls that countries reintroduced unilaterally under the Schengen Borders Code would have to expire at the latest by 13 May for Germany, 15 May for Austria, 9 July for Sweden and 15 July for Norway.

(*) See also:

Progress Report on the implementation of the hotspot approach in Greece
EU-Turkey Joint Action Plan – Third implementation report
Press release: Commission Visa Progress Report: Turkey makes progress towards visa liberalisation
FACTSHEET: The Schengen Rules Explained
FACTSHEET: EU-Turkey Joint Action Plan – Implementation report
FACTSHEET: Greece: Progress Report
FACTSHEET: Relocation and Resettlement

THE ODYSSEUS NETWORK : SEARCHING FOR SOLIDARITY ​IN EU ASYLUM AND BORDER POLICIES

ORIGINAL PUBLISHED HERE 
A Collection of Short Papers: Searching for Solidarity in EU Asylum and Border Policies

We are pleased to publish a collection of short papers written by conference speakers, based on a number of presentations given at the conference.

READ THE PUBLICATION
Table of contents :
  • Failure by Design? On the Constitution of EU Solidarity​​Gregor Noll​​
  • Intra-EU solidarity and the implementation of the EU asylum policy: a refugee or governance ‘crisis’? Lilian Tsourdi
  • Practical Cooperation and the First Years of the EASOMadeline Garlick
  • Solidarity as a sovereignty-reducing penalty for failing to meet responsibility in the European Border and Coast Guard, Philippe De Bruycker
  • Control and Closure of Internal Borders in the Schengen Area, Nuno Piçarra
  • Hotspots: the case of Greece, Aikaterini Drakopoulou
Visit the Odysseus website in the coming days for material from the conference, including Powerpoint presentations, photos, podcasts and more…


STRASBOURG : The CIA’s abduction and extrajudicial transfer to Egypt of the imam Abu Omar infringed the applicants’ rights under the Convention

 

The judgment which has just been issued, resulting from the unanimous convergence of the Chamber’s seven judges, declares that the Italian state has violated art. 3 of the ECHR, not just by cooperating in Abu Omar’s kidnapping and his rendition to the Egyptian authorities, which exposed him to subsequent tortures; but also, and most importantly, insofar as it prevented the investigations undertaken by the Milan prosecutors’ office and the trial which were subsequently celebrated from ending naturally into the punishment of the defendants who were deemed responsible.

The reasons for the most important violation among those ascertained in Strasbourg (and it is a very long list) lie in the government’s, Constitutional Court’s and the former President of the Republic behaviour. These institutions have been respectively held responsible for the following reasons:

– insofar as the government is concerned, for its decision to apply state secrecy in the criminal trials to information that was already widely known to the public, evidently for the only purpose of preventing several defendants from being punished (see points 268 and 272 of the sentence), as well as for its later decision not to request -except for a single case- the extradition of the convicted US nationals;

– insofar as the Constitutional Court is concerned, for establishing through the judgments rendered in this case the prevalence of the state secrecy over the public interests pursued by the criminal justice system and, more generally, over the protection of the victims’ fundamental rights;

– insofar as the President of the Republic is concerned, for his decision to grant pardon to three convicts, including the one who had received the heaviest sentence because of his key role in the operation.

Worth to be mentioned here are the passages where the Court “pays homage to the national judges, who have done everything they could to try to establish the truth” (para. 265), and where it stresses the “great quality of the Italian investigators’ and judges’ work” (para. 269). All this has, unfortunately, not prevented the entire matter from ending in the impunity, in pratice, of all those found to be responsible, in contrast to the procedural obligations arising from the Convention.

This is a new unfortunate chapter for Italy in Strasbourg, in spite of the important recognition -as it had already happened in the Cestaro judgment, concerning the case of the Diaz school [at the Genoa G8 in 2001]- of the quality of the work done by our Judiciary for the defence of everybody’s fundamental rights, innocent parties and culprits alike.

Francesco VIGANO’

 

 

NOTA BENE : THIS IS A EUROPEAN COURT OF HUMAN RIGHTS PRESS RELEASE (emphasis are added) EDC

In today’s Chamber judgment1 in the case of Nasr and Ghali v. Italy (application no. 44883/09) the European Court of Human Rights held, unanimously, that there had been:

– with regard to Mr Nasr:

  • a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights,
  • a violation of Article 5 (right to liberty and security) of the European Convention,
  • a violation of Article 8 (right to respect for private and family life) and
  • a violation of Article 13 (right to an effective remedy) read in conjunction with Articles 3, 5 and 8

– with regard to Ms Ghali:

  • a violation of Article 3 (prohibition of torture and inhuman or degrading treatment),
  • a violation of Article 8 (right to respect for private and family life) and
  • a violation of Article 13 (right to an effective remedy) read in conjunction with Articles 3 and 8

The case concerned an instance of extrajudicial transfer (or “extraordinary rendition”), namely the abduction by CIA agents, with the cooperation of Italian officials, of the Egyptian imam Abu Omar, who had been granted political asylum in Italy, and his subsequent transfer to Egypt, where he was held in secret for several months.

Having regard to all the evidence in the case, the Court found it established that the Italian authorities were aware that the applicant had been a victim of an extraordinary rendition operation which had begun with his abduction in Italy and had continued with his transfer abroad.

The Court had already held in previous cases (El-Masri v. The former Yugoslav Republic of Macedonia [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014) that the treatment of “high-value detainees” for the purposes of the CIA’s “extraordinary rendition” programme was to be classified as torture within the meaning of Article 3 of the Convention.

In the present case the Court held that the legitimate principle of “State secrecy” had clearly been applied by the Italian executive in order to ensure that those responsible did not have to answer for their actions. The investigation and trial had not led to the punishment of those responsible, who had therefore ultimately been granted impunity.

Principal facts

The first applicant is Osama Mustafa Hassan Nasr, also known as Abu Omar, who was born in 1963. The second applicant is Nabila Ghali, who was born in 1968. Both are Egyptian nationals. Mr Nasr, member of the group Jama’a al-Islamiya – an Islamist movement regarded by the Egyptian government as a terrorist organisation – had lived in Italy since 1998. He became an imam and settled in Milan in July 2000. He was granted political asylum in February 2001 and married Ms Ghali in October of that year.

Mr Nasr was suspected, among other offences, of conspiracy to commit international terrorist acts, and his links to fundamentalist networks were investigated by the Milan public prosecutor’s office. The investigations concluded in June 2005 when the investigating judge made an order for Mr Nasr’s pre-trial detention. On 6 December 2013 the Milan District Court convicted Mr Nasr of membership of a terrorist organisation.

On 17 February 2003, while he was walking down a street in Milan, Mr Nasr was abducted and taken to the Aviano air base operated by USAFE (United States Air Forces in Europe), where he was put on a plane bound for the Ramstein US air base in Germany. From there he was flown in a military aircraft to Cairo. On his arrival he was interrogated by the Egyptian intelligence services about his activities in Italy, his family and his trips abroad. Mr Nasr was detained in secret until 19 April 2004 in cramped and unhygienic cells. He was taken out of his cell at regular intervals and subjected to interrogation sessions during which he was ill-treated and tortured.

On 19 April 2004 Mr Nasr was released. He maintained that he had been released because he had given statements in accordance with the instructions he had received and on condition that he did not leave Alexandria and remained silent about his experiences in prison. In spite of this condition, Mr Nasr telephoned his wife to let her know that he was safe. He also submitted a statement to the Milan public prosecutor’s office in which he described his abduction and torture. Approximately 20 days after his release, Mr Nasr was rearrested and detained. He was released on 12 February 2007 without charge but was prohibited from leaving Egypt.

On 20 February 2003 Ms Ghali had reported her husband’s disappearance to the police. The Milan public prosecutor’s office immediately started an investigation into abduction by a person or persons unknown. The Milan police department dealing with special operations and terrorism (the “Digos”) was put in charge of the investigation. In February 2005 it submitted a report on the investigation to the public prosecutor’s office. All the information obtained in the investigation confirmed Mr Nasr’s version of events with regard to his abduction and his transfer to the Aviano US air base and subsequently to Cairo. It also established that 19 US nationals had been involved in the events, including members of the United States diplomatic and consular corps in Italy. The investigators also found that the CIA chief in Milan at the time, Robert Seldon Lady, had played a key role in the events.

On 23 March 2005 the public prosecutor requested the pre-trial detention of 19 US nationals, including Mr Lady, who were suspected of involvement in planning and carrying out the abduction. The Milan investigating judge ordered the pre-trial detention of a further three US nationals. All 22 were declared “fugitives”. In November and December 2005 the prosecutor in charge of the investigation requested the principal public prosecutor to ask the Ministry of Justice to seek the extradition of the accused on the basis of a bilateral agreement with the United States and to request Interpol to initiate an international search for them. On 12 April 2006 the Minister of Justice informed the prosecuting authorities that he had decided not to seek the extradition of the 22 accused US nationals or to have an international wanted notice issued concerning them.

The second phase of the investigation related to the involvement of Italian nationals, including State agents. During the investigation it transpired that two senior officials of the SISMi (the Italian military intelligence agency) had been aware of the CIA’s plan to abduct Mr Nasr and of possible SISMi involvement. A journalist, Mr Farina, was also implicated, having allegedly attempted to lay false trails for the investigators at the request of SISMi agents.

In July 2006 the Prime Minister stated that the information and documents requested by the public prosecutor’s office were covered by State secrecy and that the conditions for lifting that secrecy were not met. In a judgment of 18 March 2009 the Constitutional Court held that the interests protected by State secrecy took precedence over any other interests guaranteed by the Constitution, and pointed out that the executive was invested with discretionary powers to assess the need for secrecy in order to protect those interests. The Constitutional Court specified that these powers were exempt from review, including by the Constitutional Court, and emphasised that it was not its task to examine the reasons for having recourse to State secrecy. Numerous items of evidence in the ongoing proceedings were therefore declared confidential and unusable.

On 4 November 2009 the Milan District Court delivered a judgment in which it found that Mr Nasr’s abduction had been planned and carried out by CIA operatives on the basis of a decision taken at political level; that the abduction had been carried out without the knowledge of the Italian authorities also engaged in investigating Mr Nasr at that time; and that the fact that authorisation had been given by very senior CIA officials suggested that the operation had been staged with the knowledge or even the tacit consent of the Italian authorities, although it had not been possible to further investigate the evidence existing in that regard for reasons of State secrecy.

Lastly, 22 CIA operatives and high-ranking officials, and one US army officer, were convicted in absentia of Mr Nasr’s abduction and were given prison sentences of between six and nine years. Two members of the SISMi were found guilty of obstructing the investigation and sentenced to three years’ imprisonment. The convictions of the former head of the SISMi and his deputy, and those of the three former SISMi members, were quashed by the Court of Cassation on grounds of State secrecy. The US nationals were also ordered to pay damages to the applicants in an amount to be determined in civil proceedings. The District Court provisionally awarded one million euros (EUR) to Mr Nasr and EUR 500,000 to Ms Ghali. The applicants have received no compensation to date, nor have the Italian authorities sought the extradition of the convicted US nationals.

Complaints, procedure and composition of the Court

Relying on Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention, Mr Nasr complained of his abduction, in which the Italian authorities had been involved, of the ill-treatment to which he had been subjected during his transfer and detention, of the fact that those responsible had been granted impunity owing to the application of State secrecy, and of the fact that the sentences imposed on the convicted US nationals had not been enforced because of the refusal of the Italian authorities to request their extradition. Lastly, both applicants alleged, among other violations, a breach of Article 8 (right to respect for private and family life) in that Mr Nasr’s abduction and detention had resulted in their forced separation for over five years.

The application was lodged with the European Court of Human Rights on 6 August 2009.

Judgment was given by a Chamber of seven judges, composed as follows:

  • George Nicolaou (Cyprus), President,
  • Guido Raimondi (Italy),
  • Päivi Hirvelä (Finland),
  • Ledi Bianku (Albania),
  • Nona Tsotsoria (Georgia),
  • Paul Mahoney (the United Kingdom),
  • Krzysztof Wojtyczek (Poland),
  • and Françoise Elens-Passos, Section Registrar.

 

Decision of the Court

Article 3 (prohibition of torture and inhuman or degrading treatment)

Regarding the investigation and trial

The Court began by observing that the domestic courts had conducted a detailed investigation that had enabled them to reconstruct the events. The evidence that had ultimately been disregarded by the courts on the ground that the Constitutional Court had found it to be covered by State secrecy had been sufficient to convict the accused. The Court went on to note that the information implicating the SISMi agents had been widely circulated in the press and on the Internet; it therefore found it difficult to imagine how invoking State secrecy had been apt to preserve the confidentiality of the events once the information in question had been disclosed. In the Court’s view, the executive’s decision to apply State secrecy to information that was already widely known to the public had resulted in the SISMi agents avoiding conviction.

As to the convicted US agents, the Court noted that the Government had acknowledged never having sought their extradition. According to the Government, they had issued European arrest warrants and a single international arrest warrant against Mr Lady, which had yielded no results. Furthermore, the President of the Republic had pardoned three of the convicted persons, including Mr Lady, who had received a heavier sentence because of the extent of his responsibility in the extraordinary rendition operation.

The Court noted that in spite of the efforts of the Italian investigators and judges, which had identified the persons responsible and secured their convictions, the latter had remained ineffective owing to the attitude of the executive. The legitimate principle of “State secrecy” had clearly been applied in order to ensure that those responsible did not have to answer for their actions. Accordingly, the investigation and trial had not led to the punishment of those responsible, who had ultimately been granted impunity.

The Court therefore took the view that the domestic investigation had not satisfied the requirements of the Convention. Accordingly, there had been a violation of the procedural aspect of Article 3 of the Convention.

Regarding the inhuman and degrading treatment

It was beyond doubt that Mr Nasr’s abduction had entailed the use of techniques that must have caused him emotional and psychological distress. His ensuing detention, including his transfer by plane to an unknown destination, had undoubtedly placed Mr Nasr in a situation of complete vulnerability, and he had undeniably lived in a permanent state of anxiety owing to his uncertainty about his fate. In fact, in his statement to the Milan public prosecutor Mr Nasr had given details of the circumstances surrounding his abduction and his detention in Egypt and the treatment to which he had been subjected, and in particular the violent interrogation sessions. The Court had previously held that similar treatment of “high-value detainees” for the purposes of the CIA’s extraordinary rendition programme was to be classified as torture within the meaning of Article 3 of the Convention2.

In view of the fact that the Italian authorities had been aware of the extraordinary rendition operation carried out in the context of the CIA’s high-value detainee programme, and had actively cooperated with the CIA during the initial phase of the operation – Mr Nasr’s abduction and his transfer abroad – the Court considered that those authorities had known or should have known that this would place him at a real risk of ill-treatment. In those circumstances, the likelihood of a violation of Article 3 had been particularly high and should have been considered as inherent in the Mr Nasr’s transfer. Accordingly, by allowing the CIA to transfer Mr Nasr outside the country, the Italian authorities had exposed him to a serious and foreseeable risk of ill-treatment and of conditions of detention contrary to Article 3 of the Convention.

Under Articles 1 and 3 of the Convention the Italian authorities had had a duty to take the appropriate measures to ensure that the persons within their jurisdiction were not subjected to torture or to inhuman or degrading treatment or punishment. This had not been the case, and the respondent State had to be considered directly responsible for the violation of the first applicant’s rights under this head, as its agents had failed to take the measures that would have been necessary in the circumstances of the case to prevent this situation from occurring. The State’s responsibility in this regard was all the greater since Mr Nasr had been granted refugee status in Italy.

In the Court’s view, by allowing the US authorities to abduct the first applicant, the Italian authorities had knowingly exposed him to a real risk of treatment contrary to Article 3 of the Convention. There had therefore been a violation of the substantive aspect of Article 3 of the Convention.

Regarding the violation of Article 3 in the case of Ms Ghali

As acknowledged by the Italian courts, Ms Ghali had suffered significant non-pecuniary damage as a result of her husband’s disappearance, especially on account of the sudden interruption of their married life and the damage to her psychological well-being and that of her husband. The unjustified conduct of the Italian authorities and the suffering caused to Ms Ghali as a result had been regarded by the Italian courts as sufficiently serious to warrant an award of 500,000 euros in damages.

Furthermore, the uncertainty, doubt and apprehension felt by Ms Ghali over a lengthy and continuous period had caused her severe mental suffering and distress. Like Mr Nasr’s disappearance, the prolonged period during which Ms Ghali had been left without any news of her husband was attributable to the domestic authorities. In the Court’s view, Ms Ghali had been subjected to treatment proscribed by Article 3. With regard to the investigation and trial, as the Court had already found that these had not led to the punishment of those responsible, there had also been a violation of Article 3 in Ms Ghali’s case.

Article 5 (right to liberty and security)

The unlawful nature of Mr Nasr’s detention had been established by the domestic courts, which found that he had been subjected from the outset to unacknowledged detention in complete disregard of the guarantees enshrined in Article 5 of the Convention; this constituted a particularly serious violation of his right to liberty and security. The detention of terrorist suspects under the programme of renditions set up by the US authorities had already been found in similar cases to be arbitrary3.

The Court had already found under Article 3 that Italy had been aware of Mr Nasr’s transfer outside the country in the context of an extraordinary rendition and that the Italian authorities, by allowing the CIA to abduct Mr Nasr in order to transfer him to Egypt, had knowingly exposed him to a real risk of treatment contrary to Article 3. The Court maintained those findings and considered them to be applicable in the context of Article 5. It concluded that Italy’s responsibility was engaged with regard both to Mr Nasr’s abduction and to the entire period of detention following his handover to the US authorities. There had therefore been a violation of Article 5 of the Convention in that regard.

Article 8 (right to respect for private and family life)

In view of its findings concerning the responsibility of the respondent State under Articles 3 and 5 of the Convention, the Court took the view that the State’s actions and omissions also engaged its responsibility under Article 8 of the Convention. In the light of the facts as established, the Court considered that the interference with the first applicant’s exercise of his right to respect for his private and family life had not been “in accordance with the law”. There had therefore been a violation of Article 8 of the Convention.

The Court was of the view that Mr Nasr’s disappearance, which was attributable to the Italian authorities, also amounted to interference with Ms Ghali’s private and family life. As that interference had not been in accordance with the law, there had also been a violation of Article 8 of the Convention with regard to Ms Ghali.

Article 13 (right to an effective remedy) read in conjunction with Articles 3, 5 and 8

The Court had established that the investigation carried out by the national authorities – the police, the prosecuting authorities and the courts – had been deprived of its effectiveness by the executive’s decision to invoke State secrecy. The Court had demonstrated that the State’s responsibility was engaged on account of the violations of the applicants’ rights under Articles 3, 5 and 8 of the Convention.

In the Court’s view, the applicants should have been able to avail themselves of practical and effective remedies capable of leading to the identification and punishment of those responsible, to the establishment of the truth and to an award of compensation. In view of the circumstances already examined, the Court could not consider that the criminal proceedings had been effective within the meaning of Article 13 with regard to the complaints under Articles 3, 5 and 8.

As the Government themselves acknowledged, it had not been possible to use the evidence covered by State secrecy; likewise, a request for the extradition of the convicted US agents had proved futile. As to the civil consequences, the Court considered that, in view of the circumstances, any possibility for the applicants to obtain damages had been virtually ruled out.

There had therefore been a violation of Article 13 read in conjunction with Articles 3, 5 and 8 in Mr Nasr’s case and a violation of Article 13 read in conjunction with Articles 3 and 8 in the case of Ms Ghali.

Article 6 (right to a fair trial)

The Court considered that this complaint covered the same ground as the applicants’ complaint under the procedural limb of Article 3, in so far as it related only to one specific aspect of proceedings which the Court had already found not to satisfy the criterion of effectiveness for Convention purposes. The Court therefore deemed it unnecessary to examine this complaint separately under Article 6.

Article 41 (just satisfaction)

The Court held that Italy was to pay 70,000 euros (EUR) to Mr Nasr and EUR 15,000 to Ms Ghali in respect of non-pecuniary damage and EUR 30,000 to the applicants jointly in respect of costs and expenses.

NOTES

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

(2) El-Masri v. The former Yugoslav Republic of Macedonia [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014.

(3)  El-Masri v. The former Yugoslav Republic of Macedonia [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014.