Mar 1, 2016 | Advocacy, News, Non-legal submissions
The ICJ joined today other prominent human rights organizations in urging the European Union and its Member States to respect and protect human rights and the rule of law in countering terrorism.
In their joint statement, the thirteen human rights organizations stressed the implications of Eu counter-terrorism laws and policies for human rights and the rule of law with regard to the right to be free from torture and cruel, inhuman or degrading treatment or punishment, the principle of non-refoulement, the right to liberty and security of the person, the right to a fair trial, the principle of legality, the principle of non-discrimination, the rights to freedom of expression and peaceful assembly, the right to privacy, the rights of asylum-seekers and migrants, the freedoms of movement, of religion or belief and other dimensions.
The human rights organizations that signed up to this statement are, apart from the International Commission of Jurists, the European Network Against Racism (ENAR), Amnesty International, the International Federation of Human Rights (FIDH), the Open Society European Policy Institute, the World Organisation Against Torture (OMCT), Fair Trials, European Digital Rights (EDRi), the Forum of European Muslim Youth and Student Organisations (FEMYSO), the International Federation of Action by Christians for the Abolition of Torture (FIACAT), the International Rehabilitation Council for Torture Victims (IRCT), the Association for the Prevention of Torture (APT), and the European Association for the Defense of Human Rights (AEDH).
EU-counter-terrorism&humanrights-jointstatement-2016-ENG (download the joint statement)
Jun 26, 2015 | Advocacy, Cases, Legal submissions, News
The ICJ submitted today a third party intervention before the European Court of Human Rights in the case of Richmond Yaw and others v. Italy regarding the detention of four migrants in Italian Centres for Identification and Expulsion.
The case raises issues related to the lawfulness of their detention in immigration centres, and the compliance of the mechanisms of judicial review and compensation for unlawful detention with the European Convention on Human Rights.
Taky Berko Richmond Yaw, Yaw Ansu Matthew, Darke Isaac Kwadwo, and Dominic Twumasi, nationals of Guinea, had been detained in the Centre for Identification and Expulsion of Ponte Galeria (Rome).
In these submissions, the ICJ presented the Court with a summary of its findings regarding the law and practice of detention of migrants and the related judicial guarantees in Italy, in its 2014 report, “Undocumented” Justice for Migrants in Italy.
Furthermore, the ICJ presented an analysis of the principles that apply in regard to arbitrary detention of persons detained for the purposes of immigration control under article 5.1.f. ECHR, in particular:
- The principle of legality, including the fact that the basis, procedures and conditions for detention must be provided by law, and the principle that detention must be carried out in good faith; and the due process guarantees related to these principles;
- The requirement that detention be undertaken only pursuant to the permitted purposes of article 5.1.f ECHR, and the need for strict construction of this requirement, and ongoing scrutiny of compliance with it, in particular in the context of long periods of detention;
- The requirements of access to an effective judicial mechanism to secure the right to habeas corpus and review of the legality, necessity and proportionality of the detention of migrants, under article 5.4. ECHR;
- The requirements of an effective remedy and reparation mechanism for unlawful deprivation of liberty under article 5.5 ECHR.
ECtHR-AmicusBrief-Yaw&others v Italy-Advocacy-Legal Submission-2015-ENG (download the third party intervention)
May 29, 2015 | Advocacy, News, Non-legal submissions, Position papers
The ICJ called today on the EU institutions to bridge the final implementation gaps to ensure an effective access to justice to victims of violent hate crimes.
The contribution of the ICJ was submitted as input for the European Commission’s first annual fundamental rights colloquium to be held next October and focused on “Tolerance and respect: preventing and combating antisemitic and anti-Muslim hatred in Europe”.
In its submission, the ICJ finds that the greatest weakness in addressing violent hate crime currently lies primarily in the failure of effective national implementation, which has meant that, despite development of the law, and despite authoritative recommendations from international and EU human rights bodies, the frequency of commission of violent hate crimes appears to have increased, and impunity for such crimes has persisted.
The ICJ considers that there are two main reasons for this lack of implementation: 1) lack of political or institutional will in Member States; 2) lack of implementation tools tailored to the laws, legal institutions and culture of the single national legal system.
The ICJ concluds, in its contribution, that it is the time for the European Union institutions to take up the opportunity to unite the efforts of all those concerned in the administration of justice – judges, court administrators, lawyers, civil society, judicial organizations, bar associations and government officers – throughout the EU to work together on the detailed technical assistance needed for an effective implementation of the right to an effective remedy for victims of crimes motivated by discrimination.
EU-Colloquium2015-ICJContribution-ViolentHateCrimes-Advocacy-non legal submission-2015-eng (download the submission)
Apr 28, 2015 | Advocacy, News, Non-legal submissions
The ICJ is urging the European Council to immediately act to take effective measures to protect the lives of migrants at sea, after it failed to respond adequately to the repeated tragedies at a special meeting held on 23 April.
The special meeting of the European Council was called after the sinking of a boat in the Libyan Search and Rescue Zone left at least 700 persons dead. Since then, other incidents have brought the death toll in the Mediterranean to more than 1,000 in one week.
In its statement, released following the meeting, the European Council directed the EU institutions and the Member States to take a set of actions with the stated aim of preventing further loss of lives at sea.
The ICJ is deeply saddened by these tragedies that are the concern not only of the Mediterranean region and of Europe, but of the whole of the international community.
It is deeply regrettable that the reaction of the European Union and its Member States at a moment of such gravity has concentrated on presevering security of borders, and returning migrants, rather than on humanitarian and human rights concerns, particularly strengthening search and rescue operations in order to save lives, the ICJ says.
Although the European Council has affirmed that its “immediate priority is to prevent further loss of life at sea”, the measures envisaged in this statement are not designed to achieve this aim. Instead, they reflect a continuing security-based policy, centred on the need to “fight the traffickers” and on combatting irregular migration.
The ICJ supports the call of the UN Special Rapporteur on the rights of migrants, Fraçois Crépeau, urging the EU and Member States to focus their migration policies on the introduction of safe and legal migration routes and combatting the black labour market.
The framing of migration policies around narrowly perceived “security” interests and the strengthening of border controls creates a situation in which smugglers provide the only route for many migrants and this is leading to serious abuses of human rights. Migrants, many of whom are fleeing war or persecution, should not have to resort to such means of reaching safety in Europe.
“Strengthening our presence at sea”
While welcoming the increase in financial support for Frontex operations Triton and Poseidon with a view to foster its search and rescue capabilities, the ICJ is concerned that this commitment in the context of operations presently aimed to “control irregular migration flows towards the territory of the Member States of the EU and to tackle cross-border crime” risks marginalizing rescue at sea within these operations.
Resources must also be allocated directly to increase search and rescue capacities at the EU and national levels, in order to ensure that the human rights of migrants are protected, and that lives are saved.
“Fighting traffickers in accordance with international law”
The commitment in the statement to increase intelligence and police co-operation with third countries as a means of fighting trafficking, without corresponding human rights protections. Any such co-operation must be carried out in compliance with the EU Charter of Fundamental Rights, the European Convention on Human Rights and other international human rights law and standards.
Without strong safeguards in law and in practice, there is a risk that such co-operation may lead to exchange of information or evidence with, or transfer of suspects to, States in which human rights abuses are systematic or widespread or where particular individuals may be at risk.
This may lead to violations of human rights, including of the right to asylum, the right to the protection of non-refoulement, the right to be free from torture and ill-treatment and the right life.
In addition, engagement in intelligence and police cooperation, while an important tool in effective law enforcement, risks, if not undertaken with adequate safeguards, leading to infringements to the right to privacy, the right to data protection, and the prohibition of collective expulsions.
All of these rights are protected by the EU Charter of Fundamental Rights, as well as by international human rights treaties binding on EU Member States.
Regarding the commitment to take systematic action to capture and destroy vessels used by traffickers in the Mediterranean, the ICJ is also seriously concerned that any such any action risks to be in violation of international law and could lead to a risk of loss of lives.
Finally, the proposal to use Europol to detect and request removal of internet content used by “traffickers” to attract migrants and refugees may lack a sufficient legal basis in EU or national law.
While welcoming the statement’s acknowledgment that such measures must be in accordance with national constitutions, the ICJ recalls that they must also be in compliance with the EU Charter and international human rights law.
Any new measures must include safeguards and limitations to ensure that human rights, including the rights to freedom of expression and association are fully respected.
“Preventing illegal migration flows”
The ICJ is concerned that the stepping up of cooperation initiatives envisaged in the statement, with the aim of preventing irregular migration, poses a risk of complicity by the EU, i.e. aiding or assisting in violations of human rights by third countries.
The ICJ urges that any co-operation with third countries in preventing irregular migration must be in compliance with the EU Charter of Fundamental Rights and international human rights law.
Furthermore, the ICJ is particularly concerned by the decision of the European Council to promote further the readmission to third countries of “unauthorised economic migrants” and to order the establishment of a new return programme for the rapid return of “illegal migrants” from frontline member states, co-ordinated by Frontex.
While the content of the new fast return programme proposed by the Council remains unclear, as does the definition of “rapid return,” the ICJ considers that such a programme is likely to increase the possibility of European Union complicity in violations of the protections of non-refoulement, the right to asylum, the prohibition of collective expulsions and the right to an effective remedy, against its obligations under the EU Charter of Fundamental Rights.
The ICJ is concerned that the rapidity of the return could be linked to certain national expulsion practices that are at odds with the Member States’ obligations under the EU Charter and international human rights and refugee law. Furthermore, the ICJ recalls that under article 9 of the Frontex Regulation, Frontex, in its joint return operations, is not able to assess the compliance of return decisions on the merits. This lack of control increases the risk of aiding or assisting in serious violations of human rights.
“Reinforcing internal solidarity and responsibility”
Finally, in regard to the commitment to provide emergency aid to frontline Member States, the ICJ supports the rapid deployment of a long-term, sustainable programme of aid to such states, directed at the provision of search and rescue operations in the Mediterranean, and designed to safeguard the lives and rights of migrants.
The ICJ also recalls that, consistent with the dictates of the UN charter and international human rights treaties, States are under a general obligation to engage in international cooperation and assistance to protect human rights.
Conclusion
The ICJ deplores the fact that, following the tragic death of more than 1,000 people in one week, the EU Member States and the European Council, have failed to act meaningfully to protect the lives of migrants by taking decisive measures to protect the right to life of those crossing the Mediterranean.
In prioritizing border security and returns over search and rescue, the Member States of the European Union have demonstrated a reckless disregard for the human rights of migrants fleeing war, persecution or dire standards of living.
The ICJ urges the EU Member States and the EU institutions to take swift action, centred on the protection of lives and rights of migrants, in order to uphold the EU founding values of the rule of law and human rights, affirmed in article 2 of the Treaty on the European Union.
