Author Archives: Elena Borsacchi

The State of the Union 2018 and Migration: a far-sighted Europe deserves more courage


On the 12th of September 2018 the President of the European Commission, Mr. Jean Claude Juncker, pronounced the State of the Union Address of 2018 before the plenary session of the European Parliament. The State of the Union’s speech prepares the ground for the debate which will involve the highest EU Institutions the year ahead. It normally includes a report on the Union’s activities of the past year, as well as a letter of intent for the forthcoming one with the aim of underlining the priorities of the Union. While migration was included in the agenda, one might have expected a more far-sighted approach from the EU institutions. This post aims to see how the current -still improvable- EU policy on migration, as emerged from the 2018 State of the Union Address and its attachments, could act as a useful starting point for a more ambitious project in the future.

The 2018 Address: the responsibility of solidarity

‘We cannot continue to squabble to find ad hoc solutions each time a new ship arrives. Temporary solidarity is not good enough. We need lasting solidarity – today and forever more’.

‘Responsibility’ and ‘solidarity’ were two of the most frequent concepts the President Juncker made reference to in his speech. The first mention of the perpetual responsibility of the European Union comes at the very beginning of the speech together with a reference to the EU’s well-known role as the guardian of peace. As for solidarity, the President reminds how the EU operations have rescued more than half a million of people at sea since 2015, The Address brings to light several ambitious proposals linked to the main criticalities of the EU’s migration policy at the moment: the improvement of equipment and means for the European Border and Coast Guard; the reinforcement of the European Agency for Asylum; a more effective European return policy; the improvement towards more effective legal migration policy through the opening of legal pathways ( based on humanitarian reasons as well as on labor market needs) to the Union.

All of these tasks are planned according to the updated version of the project for a Common European Asylum System, which includes a stronger protection of the European external borders and a sharper distinction in terms of status between irregular and legal migrants among the EU priorities. In all fairness, the reinforcement of the European Agency for Asylum should also serve the scope of making the support of the EU to Member States more effective in order to comply with the international protection principles. At the same time, however, strengthening the European Border and Coast Guard would probably mean for the EU to stay focused on a short-term ‘border defence’ purpose rather than on a long-term management and regulation of third nationals’ inflows. On the one hand, the improvement of a EU Border and Coast Guard might lead eventually to reconsider the broad responsibility which the EU has partially discharged through the externalization of the migration management at its external borders counting on its neighbours, such as Turkey and Libya; on the other, however, the priority accorded to such a defensive objective makes extremely clear which direction has been chosen by the EU for the benefit of a certain idea of sovereignty. Besides any possible uncertainty, it is worth to bear in mind that a number of European Mediterranean countries at the border of the EU, particularly affected by the Balkan and the Central Mediterranean Route, have managed a huge humanitarian crisis since 2011 and, because of the lack of resources and obsolete EU and domestic legislation, they have faced it through all but a far-sighted approach. This has resulted in the implementation of many emergency measures within the EU, instead of a long-term and perspectival reform for a fair and common migration management.

The reform of the 2008 Return Directive: from a liberal approach to more restrictive definitions

In 2008 the EU States agreed upon several common rules for the return and the removal of irregularly staying migrants which have been transposed in the Directive 2008/115/EC of the European Parliament and the Council (hereinafter the ‘Return Directive’). Nowadays the enforcement of an amended European return policy should be considered the most significant point among the proposals announced by the EU Commission (or the Commission) on the occasion of the State of the Union: it resulted in the presentation of a Proposal for the reform of the Return Directive).

The Proposal, contrary to the more liberal case law of the Court of Justice of the European Union on the 2008 Return Directive, [1] embraces the more restrictive current approach of the Commission.[2] In the Explanatory Memorandum attached to the Proposal, the Commission underlines that an update of the EU return policy is needed due to the increasing migratory pressure on the Member States and the Union. In the past few years, Member States have indeed struggled in implementing the EU framework. They also have faced numerous difficulties in managing return procedures and complying with return decisions against irregular migrants allegedly because of their lack of cooperation in doing so.

The most delicate issues of the EU return policy deal with the relationship between the rules on detention (Article 15 of the 2008 Return Directive) and the functional definition of the “risk of absconding” (Article 6 of the Proposal), which is a condition to apply detention. The definition of the ‘risk of absconding’ has been set through the not exhaustive list of objective criteria provided by the Proposal: this parameter shall be used in the overall assessment of the specific individual case in migration-related procedure (administrative or criminal) in order to evaluate the need of preventing secondary movements of an individual within the EU. The list of criteria refers, in some cases, to extremely broad issues (such as the a risk for public security or national security), and in others to grounds that might potentially correspond to the commission of crimes (or single elements of crimes), depending on the system (e.g. see, among others, (from the list provided by the new article 6 of the proposal): (a) lack of documentation proving the identity; (b) lack of residence, fixed abode or reliable address; (c) lack of financial resources; (d) illegal entry into the territory of the Member States; (e) unauthorised movement to the territory of another Member State; (f) explicit expression of intent of non-compliance with return-related measures applied by virtue of this Directive) etc. The ‘risk of absconding’ itself could frequently be included, as occurs in the Italian criminal system, among specific procedural requirements for custody against suspects of crimes. For that reason, the use of such an ambivalent concept could create significant ambiguity in the law instruments that every Member State is requested to adopt.

After reminding that the new Directive Proposal aims at guaranteeing the principle of non refoulement, as well as the supreme protection of fundamental rights, the EU Commission turns to the use of detention (Article 18 of the Proposal) against illegal migrants. The Commission rates as a new emerging risk the fact that some third country nationals -supposedly considering the massive inflows- have posed or might pose a threat to public order or national security.

In the same way as in the externalization policy implemented and regulated by the EU and Turkey statement and the agreement between EU and Libya, the notions of public order and national security risk also in this case to appear to be empty boxes to store every undefined conduct so as to detain individuals who might be classified as ‘suspects’ of law breaching (such as irregular migrants, suspects of crimes, reported as suspects against national security). Moreover, like in the 2008 Directive, the Proposal does not refer to the precise field of law within which the detention of “irregular” migrants should find its own regulation: that is probably due to the fact that Member States apply either administrative or criminal measures depending on the risk assessment.

The unbearable uncertainty of the criteria on which the application of detention measures is based in the case of illegal migrants (i.e., irregulars, individuals affected by an order of expulsion or by a denial of international protection, “suspects” of not defined crimes) has therefore even got worse as a consequence of the undefined nature of the measures adopted. The latter might also affected the remedies at migrants’ disposal against a first instance denial of international protection or against an expulsion order, which are, again, differently-defined depending on the Member States’ legislative and judicial orders.

To sum up, notwithstanding the ambiguity in referring to the administrative or the criminal dimension indifferently has allowed every Member State to regulate freely the matters of detention against ‘illegal migrants’ according to its own legal system, a step forward in the perspective of a complete reform of the Return policy with the aim of ensuring harmonization among Member States’ practices could and should have been planned.


The 2018 State of the Union Address by the EU Commission promotes a ‘necessary’ switch of perspective allegedly caused by, on the one hand, an increasing pressure of migration on Member States’ boarders and, on the other, an ineffective return practice within the EU. Notwithstanding the urgency of setting out several key points – which the Proposal did meet, – such as the improvement of equipment and means for the European Border and Coast Guard, the reinforcement of the European Agency for Asylum and the reform of the return policy, the Address seems to leave behind several permanent criticalities in terms of de-harmonisation.

The protection of an idea of sovereignty of the European Union should have brought to light a more ambitious proposal, much more ambitious than a mere ‘defensive’ approach in terms of return policy and individual guarantees. The EU could have proposed the establishment of the principle of the EU sovereignty in the migration matters on the Member States’ practice through the creation of a long-term common operative équipe of experts dealing with migration within the EU by applying EU regulations and fundamental principles. This in order to erode progressively and slowly national sovereignty in a field which cannot be handled by single competent national authorities, normally politically linked to the national Government in charge (such as the Ministry of Home Affairs in Italy). This long-term revolution would ensure a far-sighted harmonization of practices within the EU in order to ‘offer – As the Commissioner for Migration, Home Affairs and Citizenship, Mr. Avramopoulos, stated –more Europe where more Europe is needed’ and ‘to support Member States to take up their responsibilities.



[1] See on this point the interesting contribution of S. Peers, Lock’em up: the proposal to amend the EU’s Return Directive, 12th September 2018 <;; for some examples on the more ‘liberal case law’ see Judgment of the Court (Grand Chamber), 18 December 2014 Mohamed M’Bodj v État belge, Judgment of the Court (Grand Chamber), 18 December 2014, Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida, Judgment of the Court (Second Chamber) of 26 July 2017 Criminal proceedings against Mossa Ouhrami, Judgment of the Court (Grand Chamber) of 7 June 2016 Sélina Affum v Préfet du Pas-de-Calais and Procureur général de la Cour d’appel de Douai.

[2] ibidem ; see also European Commission releases proposal to recast Return Directive, 14th of September 2018, <;.



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The Italian legislation on foreign and unaccompanied minors between international principles and EU good practices: is a new de iure condendo perspective needed?

  1. Introduction

Over the past few years, the European Union has adopted a number of Directives relating to migrant rights. In particular, European Union Directive 2013/33/EU, laid down standards for the reception of applicants seeking international protection, while Directive 2013/32/EU established common procedures for the granting and withdrawal of international protection. In Italy, these Directives were implemented by means of legislative decree n. 142 of 2015 (hereinafter dlgs n. 142/2015)Law n. 47, of 7 April 2017, (hereinafter Lg. n. 47/2017), and legislative decree n. 220, of 22 December 2017 (hereinafter dlgs. N. 220/2017).

This post will focus on the recent Italian legislative developments in relation to unaccompanied minors. Following an overview of the legislation and the guidelines issued by the European Union, the post will highlight some outstanding issues relating to the existing body of legislation in the field and will seek to address whether a new legislative perspective is needed.

  1. The international principles and EU guidelines.

On 19th September 2016, the General Assembly of United Nations, adopted the ‘New York Declaration for Refugees and Migrants’ (hereinafter the NY Declaration), through resolution 71/1. In Section I, para 3, the Declaration states that ‘We are witnessing in today’s world an unprecedented level of human mobility. More people than ever before live in a country other than the one in which they were born. Migrants are present in all countries in the world. Most of them move without incident. In 2015, their number surpassed 244 million, growing at a rate faster than the world’s population. However, there are roughly 65 million forcibly displaced persons, including over 21 million refugees, 3 million asylum seekers and over 40 million internally displaced persons’ (NY Declaration, Section I, para 3).

One of the main concerns for the United Nations, as well as for other supranational non-State actors, such as the European Union, is that, as has been demonstrated, a high degree of human mobility increases the number of unaccompanied children among migrants. The NY Declaration sets out a number of commitments towards migrant and unaccompanied children. One of these is the ‘equality’ clause at paras 5 and 6, which affirms the equality between migrants and refugees in terms of entitlement to international human rights protection. It includes this among the priorities of the international community, recalling established principles like the ‘best interests of the child’ and the special status of children as ‘vulnerable’ (paras 58 – 59 NY Declaration). In relation to the procedure granting international protection to third country nationals and migrants, the declaration affirms States’ commitment to ensuring “access for children to child-appropriate procedures” (para 70, NY Declaration).

The European Union, which is currently facing huge inflows of migrants through the European-African route, has shared the same concern for guaranteeing the adequate protection of third country national minors, especially unaccompanied children, in accordance with the principle of the best interests of the child. The ‘EU Guidelines for the Promotion and Protection of the Rights of the Child (2017) – Leave no child behind’, issued on the 7th of March 2017, recalled, established and pointed out some examples of good practice. The tool is general in nature and is, therefore, applicable to all the sensitive situations which could require the safeguarding of the rights of children: the management of migration certainly falls within its scope.

On this specific point, on the 12th of April 2017, the European Commission, recalling the NY Declaration itself, addressed the ‘Communication on The protection of children in migration’ (COM(2017) 211 final) to the EU Parliament and the Council, highlighting the best practices applicable to migrant and unaccompanied minors. In this document the Commission highlights several improvements requested of EU Member States with the aim of complying with EU standards relating to the identification procedure, the (adequate) standard of reception and the effective access to status determination procedures. All of these matters should be addressed by the EU Member States, in the Commission’s view, in accordance with the Council proposal for a Common European Asylum system (COM(2016) 467 final), the Council of Europe Guidelines on child-friendly justice and the EASO (European Asylum Support Office) recommendation and practices on age assessment procedure in Europe.

  1. The Italian legislation on foreign and unaccompanied minors.

At the same time that the European Commission issued its communication, Italy began its own reform process of the legislation on unaccompanied children, with the aim of complying with the new obligations established. It also issued its response to alleged violations which gave rise to Infringement proceedings opened against Italy in 2014 by the European Commission about the matter at stake. The allegations, made in a letter issued on the 11th of July 2014, listed several violations of Directive 2003/95/EU and Directive 2003/9/EU committed by Italy. In particular, it was stated that the Italian asylum system failed to grant both an expeditious and adequate procedure for the minors seeking international protection, and a high standard of conditions for their reception in the territory.

Lg n. 47/2017 aimed to integrate the already existent discipline of reception, international protection and the asylum procedure, as well as introducing regulations on unaccompanied children, regardless of their status as refugees, asylum seekers or any other status.

The law focuses on some key points, grounded on the principle of the best interests of the child, namely: the definition of the unaccompanied minor as a vulnerable subject; the principle of non-refoulement and the special return policy; the creation of a national database aimed at collecting and sharing data on unaccompanied and foreign minors at both the national and European level; and the introduction and the reaffirmation of some significant procedural guarantees in the identification and determination of the age of minors. Regarding the latter point, the law introduced a significant modification to dlgs 142/2015, by adding a new art. 19-bis. The provision establishes some mandatory steps to be followed in the reception of a foreign minor, regardless of the status of the child. These include: the medical procedures needed to determine the age of the child (which should be as non invasive as possible); an informative interview, conducted by qualified personnel; the judicial appointment of a legal guardian; an investigation on the family situation and conditions of family life; and the duty to fully inform the minor about his/her own right to apply for any form of international protection. Also particularly significant are the provisions of Art. 15 (the right of the minor to be heard in any judicial proceedings on their own interests) and Art. 16 (the right to legal representation in any proceedings and the assistance of a lawyer of their own choice).

These two specific guarantees comply with the universal principle of the effective participation of minors in proceedings involving their own interests, which, in the case of unaccompanied minors and asylum-seekers, needs to be protected even further, due to the special vulnerability of the applicants involved.

Dlgs 220/2017 builds upon Lg. n. 47: in particular, Art. 2 significantly modifies the procedure to appoint a guardian. In line with the request by the EU to grant an adequate and expeditious procedure in a specialized and streamlined system, the competence for this is assigned to the Youth Court, instead of the Civil Litigation Section of the Ordinary Tribunal.

As regards the procedure to apply for international protection, dlgs. 220 significantly modifies the clause included in Art. 19 bis of the Law Decree n. 13/2017 (converted into Law n. 46/2017 – hereinafter the Decreto Minniti). The latter, which significantly reformed the regulation of reception and asylum/international protection procedures, provided for a ‘clause of non applicability’ of the regulation to unaccompanied minors. This aimed to exclude sensitive and vulnerable minors from the general regulation.

Notwithstanding the several recent reforms, the Italian immigration system does not yet provide for a special regulation and procedure for unaccompanied minors seeking international protection. Furthermore, in excluding unaccompanied minors from its scope, the Decreto Minniti de facto created a normative vacuum. The dlgs 220/2017 solves the issues by referring, even in the case of unaccompanied minors, to the applicability of Decreto Minniti in the part relating to the international protection and asylum seeking procedure and to any other related administrative procedure.

The modification of the non applicability clause of the Decreto Minniti by the dlgs. 220 suggests a proposal de iure condendo. The total absence of a comprehensive code of procedural and substantial provisions specifically for the protection of the foreign and unaccompanied minors seeking international protection would suggest to intervene to fill the gap.

Italian legislation currently in force encompasses a significant number of different regulations: the comprehensive code of immigration law (Decreto legislativo, testo coordinato, 25/07/1998 n° 286, G.U. 18/08/1998), as integrated and amended; dlgs 145/2015, implementing directives 2013/33/EU and 2013/32/EU; the most recent so-called Decreto Minniti, converted into Law n. 46/2017; Law n. 47/2017 on unaccompanied children; and, lastly, dlgs n. 220/2017. The last three tools supposedly amended the Code of immigration law. This situation creates an uncomfortable patchwork of regulations.

  1. Final remarks

The current legislative framework is so fragmented and convoluted that it would appear to run counter to the fundamental principles as well as objectives set out by supranational bodies and with which the Italian system is trying to comply.

From a strictly legislative point of view, the recent reforms in Italian legislation deserve to be acknowledged as being formally consistent with European Union regulations and guidelines, as well as with the international principle of the best interests of the child.

However, the fragmentation in the relevant legislative tools creates a confused framework that makes it difficult to really cater for the most vulnerable category of migrants (children), who deserve to be prioritized. In this sense, the adoption of a comprehensive code of regulation in the field could probably help Italian interpreters and front line operators to intervene as best as they can to ensure the highest standard of substantial and procedural guarantees for accompanied and unaccompanied minors seeking international protection.Berlin


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The ‘Long, hot summer’ of the European Union through the Mediterranean route



Summer 2017 has come to an end and, as every year, it is time for the post-facts evaluation for the European Union and its Mediterranean Member States on the ongoing so-perceived migration crisis. Summer is in fact generally considered the harshest season of the year in terms of inflows’ management.

In the last few months, the European Union has strengthened its policy of partnership with third countries – especially with African countries – first and foremost with Libya.  The specific political situation in Libya, together with the alleged violations of human rights against migrants in the management of the Central Mediterranean route, have caused some concerns by institutions, international organisations and, most of all, the Prosecutor of the International Criminal Court (ICC), Ms Fatou Bensouda. This post aims to provide a critical overview of the ‘lights and shadows’ relating to the recent management’s policy of the European Union on the central Mediterranean route in partnership with Libyan authorities.


The 13th report on Libya’s situation addressed by the ICC Prosecutor Office to the UN Security Council


On the 8th of May 2017, on the occasion of the 13th report on the situation of Libya presented to the United Nations Security Council (hereinafter “the Council”), the Prosecutor of the ICC highlighted her Office’s concerns with respect to the country situation.[1] In particular, she underlined that the Office of the Prosecutor ‘continues to collect and analyse information relating to serious and widespread crimes allegedly committed against migrants attempting to transit through Libya’ and that it (…) is carefully examining the feasibility of opening an investigation into migrant-related crimes in Libya should the Court’s jurisdictional requirements be met.’.[2]

The report also mentions data from the International Organization for Migration (hereinafter “IOM”), according to which a significant number of migrants have attempted to reach the Italian coasts from Libya throughout the whole 2016.[3] The alarming issue – as reported – relates to the large amount of unofficial detention centres apparently arranged in Libya for migrants and, overall, to the inhumane conditions and poor treatment of detained migrants.[4] According to the allegations considered by the Prosecutor, migrants were victims of serious crimes, involving any form of violence (from torture to sexual violence), human trafficking, exploitation and smuggling by both State and non-State actors, including militias.[5]

The report concludes on migration’s matters by recalling the mutual engagement on the side of the ICC and the European Union as a whole (together with several international agencies and the Libya’s Government of National Accord) aiming at sharing information and collect elements related to the alleged crimes against migrants in Libya, as well as to the conduct of facilitation and financing of illegal migration through Libya and the Central Mediterranean route.

The Prosecutor’s statement, together with the alarming situation in Libya, reveals the fragmented and alarming framework which the EU must deal with on the “externalization” of the migration matters.


The European Union summer agenda on central Mediterranean route

The 6th of September, the EU Commission (hereinafter “the Commission”) submitted its 5th Progress Report on the Partnership Framework with third countries under the European Agenda on Migration. The Report specifically deals with the co-operation with Libya on migration through the Central Mediterranean route and sums up the main steps recently taken by the European Union.[6] After the apparently ‘successful’ implementation of the EU – Turkey agreement on the Balkan route, which has reduced the pressure on Greek borders, the Report focuses on the Italian situation, considering the massive inflows from some African states through the Libyan route. The report recalls the IOM data, showing the downward trend of arrivals via the Central Mediterranean route in comparison with summer 2016 as a positive consequence of the EU- funded actions, including the improved co-operation with Libya in border control activities.

In particular, the Commission drafted an Action plan to ‘support Italy, reduce pressure and increase solidarity’. Among its main conclusions, the Commission’s plan suggested to adopt measures by EU actors, European agencies and external partners to support Italy in reducing inflows,[7] to increase the amount of funding to be allocated to the North – Africa window of the EU-Africa Trust Fund and to help engage with Tunisia, Egypt and Algeria to encourage them to join the Seahorse Mediterranean Network.

As the Commission pointed out, the strategy of reducing outflows and enhancing security and stability implies a presumably successful combination of factors, namely: the cooperation in monitoring and increasing borders’ control, counter- terrorism activity and national security prevention through the improvement of the EUBAM Libya programme, the involvement of North African countries authorities in anti–smuggling and anti–trafficking programmes, such as the EUNAVFOR Med Operation Sophia and the SEAHORSE Mediterranean Project.

By increasing its material support to international organisations and strengthening the partnership with North African countries, the Commission aims to grant a satisfactory standard of protection to migrants and refugees and assist individuals in voluntary return from Libya to countries of origin. The pragmatic cooperation in the field of assisted and voluntary returns seems to be functional to the ‘discouraging’ policy, adopted by the European Union to ensure the asylum system’s integrity by reducing irregular movements. On the other hand, the Commission continuously stresses the importance for Members States to implement resettlement policies for those in need of international protection (while waiting for the announced reform of the European Common Asylum Legislation), also through the assistance provided by the UN forces.

Except for the EU-Turkey agreement’s experience -whose consequences in terms of human rights implications are not entirely clear yet– this practice, known as the ‘externalization of borders scheme’, is  relatively new, at least for the European Union. It might imply several critical issues. Firstly, the so called ‘assisted voluntary return’ policy, which seems to base the entire externalization partnership, may raise some issues in terms of compatibility with  the principle of non–refoulement, depending on the different situations of countries of origin and transit.[8] In fact, the policy of massive voluntary returns does not grant a satisfactory case by case analysis of individuals’ entitlement of international protection, hence it risks to go beyond the limits of the principle of protection against return to a country where a person has reason to fear persecution, as established by several international instruments relating to refugees, both at the universal and regional levels.[9] Secondly, concerning the ICC Prosecutor’s statement and report, the shared management of such a sensitive matter with a third country facing a serious political instability, such as Libya, might lead to grave consequences in case of perpetrations of international crimes. The institutional agenda of the EU summits, however, does not seem to have these issues at the heart, notwithstanding the copious declarations made also during the last “restricted” Paris summit.

This might become even more delicate  in the light of the agreement of mutual cooperation and assistance, signed in 2006, which binds the European Union and the ICC, according to which the EU is committed to  cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority




The solutions adopted by the European Union on the central Mediterranean route were originally the result of a short-sighted approach, reacting to an emergency. Nevertheless, the EU and its Member States should not ignore the ongoing violations allegedly committed against thousands of migrants in a climate of uncertainty about the identification of State and non-State actors’ responsibilities.

While the ICC Prosecutor expresses her Office’s concerns for the alleged human rights violation against migrants in Libya, the European Union tries to reinforce its partnership with African third countries, first and foremost with Libya, with the aim to ensure a prominent level of borders’ protection against illegal inflows, without, at least formally, forgetting its own core principles and duties on fundamental rights protection.

The EU should also respect its previous commitments with the ICC – and the International community as a whole -to cooperate in the prevention and repression of crimes against humanity, as well as to ensure the highest standard of human rights protection as a priority.

On the occasion of the G20 Summit, the President of the European Commission, Jean-Claude Juncker, and European Council President, Donald Tusk claimed as follows.  

Europe’s role in the world and our responsibility at the international level in these turbulent times are growing’ and hopefully so as ‘the EU’s continued commitment to defending our shared values of freedom, democracy, the rule of law and respect for human rights, and to promoting these values in Europe and around the world.

The time for a new farsighted approach of the EU to migration matters might therefore have come.


[1] The report has been adopted pursuant Resolution 1970 (2011) of the UN Security Council (S/RES/1970 (2011).

[2] Statement of ICC Prosecutor to the UNSC on the Situation in Libya (08th May 2017), para25-29.

[3] IOM, Libya Migration Crisis Operational Framework (Mcof). 7, accessed on 26th September (

[4] Thirteenth Report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.

[5] Thirteenth Report of The Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to UN SC Res 1970 (2011), paras 23-24.

[6] Fifth Progress Report on the Partnership Framework with third countries under the European Agenda on Migration, Brussels, 6.9.2017 COM(2017) 471 final, para 3.

[7] i.e,. additional funding and material support to Italy and to Libyan authorities to manage and prevent movements, readmission and resettlement agreements with some of countries of origin or transit, mobilisation of EU Agencies in cooperation with Libyan authorities to strengthen controls at the southern border, accelerate Assisted Voluntary Returns from Libya and Niger to countries of origin, working with the IOM.

[8] Gabriella Carella, ‘Il sonno della ragione genera politiche migratorie’ (SIDIBLOG, il blog della società italiana di diritto internazionale e diritto dell’Unione Europea, 11 Settembre 2017) accessed on 11th September 2017.

[9] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) Article 33(1).



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The Malta Declaration and the Italy – Libya Memorandum: a troubled relationship with external partners in migration

  1. Introduction

On 3 February 2017, at the Informal Summit of the EU Heads of States or Governments chaired by the European Council President, Donald Tusk, the 28 European leaders discussed the “external dimension” of migration in relation to European external borders. The debate centred around issues such as the shared urgency, as has been expressed over the last years by several Mediterranean EU Member States, to deal with the massive inflows of third-country nationals through the Central Mediterranean Route. As a result of the meeting, the assembly adopted the Malta Declaration on the external aspects of migration (addressing the Central Mediterranean route), through which it reaffirmed the shared principles of the EU agenda on migration and the willingness to strengthen the external borders by supporting its external partners – Libya in this case – to deal with the management of the flows.

On the same occasion, Italy signed a mutual agreement with Libya, called the “Memorandum”, with the aim of combating irregular immigration and human trafficking, as well as re-enforcing the security of the Italian and Libyan borders.

This post focuses on the most critical points emerging from the Malta Declaration and the Italy – Libya agreement on Central Mediterranean route inflows, with the aim of highlighting the most recent and significant positions on the externalisation of border control as expressed by the European Union itself and by the Mediterranean Member States.

2. The relationship with external partners and the EU agenda

Since 2011, the European Union has faced a huge migratory inflow of third-country nationals (mainly) entering through its external borders in the Mediterranean. Facing the need to frame its migration policy, and also with the aim of supporting its Member States to manage a, sadly predictable, humanitarian crisis (especially in the case of Italy and Greece), the European Union set a European Agenda on Migration. This has been articulated in four pillars, corresponding to the principles and objectives of the institutions, which traditionally balance the necessity to create a harmonised Common European Asylum System and the protection of the EU’s external borders, in accordance with the national and supranational security paradigm. The four pillars could be summarised as follows: the creation of a common European asylum system based on harmonisation and fair sharing of responsibility among states; control at the external borders and the guarantee of supranational and national security; the fight against irregular and illegal immigration; and the provision of international protection to third-country nationals who are eligible to obtain it.

In this context, as part of the political aspects of the Agenda in line with the aim to reinforce its relationship with the “eastern periphery” of Europe, in March 2016 the EU drew up an agreement with the Republic of Turkey (the EU – Turkey statement). This introduced the so-called “one to one scheme” to resettle Syrians and to partially implement the protection of the external borders on the Greek and Western Balkans route.

The Malta Declaration of February 2017 seems to follow the EU’s tendency to engage its neighbouring partners in border control and in the sharing of responsibility relating to the management of the massive influx of migrants and the humanitarian issues that frequently arise as a consequence. After reaffirming the determination to act in full respect of human rights, international law, and European values, paragraph 2 underlines the significant decrease of arrivals, through the Eastern Mediterranean route and the Western Balkans, as a result of the EU – Turkey statement last March. Paragraphs 3 and 4 highlight the urgency to manage the Central Mediterranean route and recall the determination to significantly reduce the migratory flows along that route.

Since Libya is one of the main countries of departure through that route, the EU has determined that it would support the Libyan authorities and communities in the shared management of the flows departing from its coast. The Declaration includes, among its obligations for the EU, that of supporting IOM (International Organisation for Migration) and UNHCR (United Nation High Commissioner for Refugees) with the aim of arranging the most adequate reception facilities for migrants in Libya. However, the primary objective, seems to consist of reducing the pressure on Libya’s land borders (especially its southern borders) and continuing to reinforce the link with Libya in its operations on the coast.

In addition to this, while the High Representative (hereinafter HRVP) Federica Mogherini stated that migration issues should be the core matter at stake, it appears that the relationship between the EU and Libya is going to address objectives which go far beyond the management of the migration crisis and to seek the improvement of the EU relations with the African Union, as well as the attempt to play a key role in solving the political crisis in Libya. Moreover, while it would be unfair not to underline that the HRVP stressed the importance of increasing human rights protection standards as part of the training support offered by the EU to Libyan authorities, it is also noteworthy that the final remarks of the Malta Declaration contain the commitment to reinforce EU return capacities, albeit in compliance with international law principles.

In the absence of further details, specific reports and agendas, it is difficult, at the moment, to fully understand what the improvement of the EU’s return capacities, and the reinforcement of its external borders, would imply for the EU institutions, especially in relation to the Central Mediterranean Route. The only indications at the moment concern the EU’s refusal to apply a scheme similar to that of the EU – Turkey statement to the EU – Libya relationship program on migrants; at the same time, paragraph 6 (i) of the Malta Declaration, also states that the “EU welcomes and is ready to support Italy in its implementation of the memorandum of Understanding signed on 2 February 2017 by the Italian Prime Minister and the Chairman of the Presidential Council Al – Serraj”.

3. The Italy – Libya Memorandum

The Memorandum of Understanding signed on 2 February 2017 by the Italian Prime Minister and the Chairman of the Presidential Council Al – Serraj seems to act as a hybrid source of mutual obligations in the issue at hand. Normally this type of legal document aims to define principles which seek to protect mutual interests between two or more parties. Compared to other public international law instruments, particularly those which are binding in nature, Memoranda of Understanding guarantee a higher degree of flexibility in the definition and further modification of commitments. In the case of the Italy – Libya memorandum, its strength could probably be found in its political impact. In this sense, it aims to achieve cooperation with North African countries in the management of migration inflows and to combat illegal migration and human trafficking. It also seems to reinforce good institutional relations between the two countries by continuing to support the establishment of peace and democracy in Libya.

Apart from the extremely dense content of the agreement, which contains different issues and commitments between Italy and Libya, the Memorandum also suffers from a number of shortcomings and reflects the same vagueness of the Malta Declaration- which could be summarised as follows. While the idea of cooperation and mutual support between the parties emerges as the most important statement of the Memorandum, the text does not seem to be able to express clearly and in sufficient detail: the peculiarities of the temporary reception program for migrants in Libya; or the border and security control of the southern borders of Libya by its partner; or the type of support to be accorded to the African countries of origin in accordance with the idea of the “Euro–African cooperation” in order to eliminate the phenomenon of the “illegal immigration”.

Furthermore, probably one of the most serious issues concerns the fact that Libya has never signed the 1951 Geneva Convention relating to the Status of Refugees. The Refugee Convention was the first instrument to introduce a proper definition of the status of refugee. It bestowed a specific juridical condition upon individuals needing international protection. This has imposed a duty upon States parties to ensure a minimum standard of protection and guarantees dealing with the phenomenon of displaced and disenfranchised people worldwide since the aftermath of the Second World War.

All things considered, the Memorandum and the Malta Declaration, represent legal documents mainly focused on migration matters. The fact that Libya is not a State Party to the Refugee Convention raises some concerns about how this demanding agreement will be implemented in such a sensitive field of emergency and foreign policy.

4. The risk of the failure to plan: final remarks.

The Informal Summit in Malta and the adoption of a Memorandum of Understanding between Italy and Libya have raised some concerns about the EU’s management of migration through the use of its external partners at its periphery. This is especially because both its partners, Turkey and Libya, are currently facing serious political and social troubles. This means that they are not in a position to ensure the high standard of protection of individuals required by international human rights law and international refugee law.

The result is that the EU in primis, presumably under the pressure of its Mediterranean member states, is trying to delegate the management of a huge humanitarian crisis by appointing external partners and charging them with an important responsibility in the name of national and supranational security without providing for adequate individual guarantees.

Despite the fact that the urgency of the ongoing humanitarian crisis demands a prompt and adequate response in terms of management by the EU institutions (and Member States), it seems to be predictable that a short-sighted plan adopted today by one of the greatest current supranational institutions could risk creating an even worse and unmanageable new reality in the distant future. The hazardous plan to counterbalance an ongoing huge humanitarian crisis with almost blind agreements, dependent upon uncertain conditions, with external partners could result in unpredictable consequences. Borrowing Benjamin Franklin’s words, ‘if you fail to plan you plan to fail’.

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The EU Commission’s Fifth Report on relocation and resettlement of migrants: a(nother) proposal.

  • Introduction

On the 13th of July (2016) the European Commission issued the fifth report on relocation and resettlement of migrants  from the external EU’s borders, addressed to the European Parliament, the European Council and the Council.  The report provides an updated state of the situation of relocation and resettlement of migrants eligible to obtain international protection in EU countries in the light of the urgent migration crisis that Italy and Greece especially have been facing since 2015. The considerable increase in the number of migrants – many of whom are entitled to apply for relocation/resettlement – has imposed to the Commission to update its last report (i.e., the one issued in June 2016) with the aim of keeping the institutions fully informed about the situation at the “external borders” of Europe.  After a brief introduction about the relevant legislative framework, this post aims to underline some critical issues emerging from the relocation and resettlement policies of the European Union as set out in the official documents published so far.

  • The Council’s decisions establishing provisional measures in the area of international protection for the benefit of Italy and Greece.

The relocation and resettlement policies of the EU have been framed, firstly, by the Council Decision 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece. This was followed, just a few days later, by the Council Decision 2015/1601 of 22 September 2015 (hereafter the Decision), which provided for a few changes regarding the number of migrants needing a relocation plan. With regard to the latter instrument, it was adopted in accordance with Article 78, para 3, of the Treaty on the Functioning of the European Union, which authorises the Council to adopt provisional measures when one or more Member States are faced with an emergency situation involving a massive inflow of third countries’ nationals, in order to relieve those Member States. This provision regulates the main points that the European Union should respect in order to establish a common policy of asylum, subsidiary protection and temporary international protection for eligible third country nationals. The principle of mutual solidarity and the rule of fair sharing of responsibility between Member States in the management of the refugee crisis at the external borders have been recognised as the two keystones of the Decision. In addition, the individual rights granted by the Charter of Fundamental Rights of the European Union (hereinafter the Charter), along with the rights of vulnerable groups, act on the background of the Decision, balancing the needs of both public order and national security, these two becoming an inevitable paradigm of the management of every humanitarian crisis by the EU.[1]

The 23rd introductory paragraph of the Decision permits a temporary derogation from the Dublin’s Regulations System. This system provides that the Member State in which third countries’ nationals enter is responsible for their international protection. In recognition of the emergency situation in Greece and Italy, those countries have been relieved of this ‘entry and stay’ rule set out in article 13 of Reg. 604/2013.[2]

However, the Decision has let several shadows and grey areas subsist, together with the necessity to solve some critical issues. Some of these have been faced by the new report and the draft proposal for a European Union regulation establishing a Union Resettlement Framework – which has been attached to the report – while some others have been left unsolved/unresolved?. As for the latter, one could consider, for instance, the unclear legal force of the relocation and resettlement rules as regards the Member States.

  • The content of the report.

The goal of the Fifth Report[3] is to accelerate the implementation of the relocation and resettlement schemes by the Member States. It is articulated in two sections, dedicated to the relocation (1) and the resettlement (2) schemes, respectively, and containing different highlights which emerged during the reporting period, from 14th of June to 11th of July. In particular, the report warns against the bad situation of Italy in comparison to Greece. While relocation transfers from Greece have increased during the reporting period as compared to the previous one (from 594 to 710), those from Italy have decreased and remain at an unsatisfactory level (66 compared to 186). In this connection, major concerns have been expressed by the Commission regarding the relocation of vulnerable groups, especially unaccompanied minors. [4]

On the one hand, the report requires Italy to provide clearer information on the number of arrival, to develop a special procedure for the relocation of unaccompanied minors, which is at this time extremely slow, to open additional hotspots as planned and to improve its cooperation with the other Member States. On the other hand, it was difficult for the Commission to ignore that so far several Member States have not complied with their obligations as established by the Council Decision of 22nd September 2015. Despite the deployment of many experts to Greece and Italy by the European Asylum Support Office, the data provided by the fifth report show an increasing level of (humanitarian) emergency and a worrisome deterioration of the refugee crisis. It unfortunately appears that the efforts made by and the means available to the countries at the external borders are not yet sufficient to face the ongoing inflow of migrants seeking international protection.

Regarding the resettlement scheme (sub 2 of the Decision), it has resulted in the resettlement of about 8000 people (mostly Syrian nationals from Jordan, Lebanon and Turkey) to twenty different countries. The Commission has also made reference to the EU–Turkey statement of 18 March 2016, which foresees the activation of the Voluntary Humanitarian Admission Scheme with Turkey, currently still at the negotiation stage. This scheme is part of the general political agreement between EU and Turkey concluded last March with the aim of stopping the unconditional flow of migrants from the eastern route to Greece.[5]

The report’s conclusion is twofold. On the one hand, the Commission has urged Italy to quickly step up its processing capacity and to cooperate more closely with Member States in implementing the relocation scheme, especially regarding the situation of the vulnerable group of unaccompanied minors.  On the other hand, the Commission has exhorted all Member States to urgently provide an adequate response to the crisis and to build up support of Italy and Greece by increasing the number of pledges. The Commission has also expressed its concern by ‘reserving the right to take action against those Member States not complying with their obligation’.[6] This statement – which could play a role in terms of political effectiveness – compels the EU institutions to ask themselves about the kind of actions that could be taken in order to induce Member States to comply with the Council’s Decision.

  • The proposal

The problem highlighted by the Commission’s report has not been solved by the proposal attached thereto, establishing a Union Resettlement Framework and amending Regulation (EU) n. 516/2014.[7] The explanatory memorandum of the proposal underlines the ’voluntary basis’ of the resettlement commitments of all Member States, as established by the framework regulation. The effort required might be considered ‘binding’ given the principles of fair sharing of responsibility and solidarity, which are crucial to the aim of building a Common European Asylum System and consistent with the policy on better migration management adopted by the European Agenda on Migration.[8]

In this sense, the proposal acknowledges several core principles and good practices in the field, namely: a) reducing divergences between Members States and creating common rules for resettlement; b) discouraging second movements of the resettled people in the EU; c) distinguishing the policy of resettlement from the so-called Dublin’s regulation system; d) increasing the already central role of the United Nation High Commissioner for Refugees (hereinafter UNCHR), European Asylum Support Office (hereinafter EASO) and stakeholders in general to support Member States in managing the crisis; e) protecting fundamental rights linked to asylum and international protection, in accordance with Articles 18 and 19 of the Charter and with the principle of non discrimination;[9] f) offering priority protection to vulnerable groups;[10] g) arranging two different procedural pathways, namely, an ordinary one and an expedited one, depending on the grade of  urgency.

  • Conclusions

The publication by the Commission of the Fifth Report on relocation and resettlement has created some momentum for EU institutions and Members States to consider the status of the common European system in the field of asylum and international protection. While certain satisfactory steps have been made at the external borders of Greece, the Italian situation remains critical and very few chances to sort out the problems generated by the massive inflow of migrants there are in sight. The main issue at stake is still the lack of synergy and mutual cooperation among Member States when it comes to relocation and resettlement. Notwithstanding the political pressure exerted by the Commission, the invocation of the supreme principles of solidarity and fair sharing of responsibility in migration crisis has failed to induce Member States to comply with their commitments. Together with the absence of a mechanism of sanctions in cases of non-implementation of the Council Decision by Member States, this is liable to lead to the failure of the relocation and resettlement policy.

One day, the strength of common principles might be sufficient to induce Member States to implement the obligations arising from any decisional act of the European Union, especially in such a delicate political field as the management of a migration crisis. For now, the European Union is unable to compel Members States (regardless of the proximity to the external border) to implement its plans on relocation and, indeed, to respect the fair sharing of responsibility. Therefore it cannot manage this huge crisis in a proper way and, considering the proportions of the emergency, this might result in the collapse of the whole system.

[1] On this point see, for example, the creation and the update of the EURODAC system, starting from the COUNCIL REGULATION (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention; another example could be the attention paid to the defence of external borders and the fight against irregular immigration which are central to the migration crisis management of the EU, as provided by the EU- Turkey statement of 18th March 2016 and within the new proposal itself of 13th of July 2016.

[2] The so-called Dublin’s Regulation System establishes which Member State is responsible for the examination of the asylum application. See Regulation (EC) No 1560/2003 and Regulation (EU) No 604/2013.

[3] Fifth Report on relocation and resettlement from the Commission to the European Parliament, the European Council and the Council, Brussels 13.7.2016, COM(2016) 480 final.

[4] Fifth Report, COM(2016) 480 final, 8 – 9.

[5] On this issue see, among others, G. Goalwin, The EU-Turkey Agreement on Refugees: Echo of a Tragic Past, available online at accessed 30th August 2016.

[6] Fifth Report on relocation and resettlement, COM (2016) 480 final, Brussels 13.07.2016, p. 11.

[7] Regulation (EU) No 516/2014 of the European Parliament and of the Council of 16 April 2014 establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC.

[8] The European Commission set out the long-term policy on better migration in the European Agenda on Migration, which developed President Juncker’s Political Guidelines. Proposal for a Regulation COM (2016) 468 final, 2016/0225 (COD), p.5.

[9] The principle of non discrimination is granted by several Universal and Regional legal provisions on human rights, namely: Article 1, 2 and 7 of the Universal Declaration of Human Rights; Article 2 and 26 of the International Covenant on Civil and Political Rights; Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination; Article 1, 8 and 24 of the American Convention on Human Rights; Article 14 of the European Convention of Human Rights.

[10] To individuate the vulnerable groups, the Commission also refers to other international tools such as the United Nations Conventions and the Conventions of the Council of Europe.

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The UN Working Group on Arbitrary Detention on Mr. Assange’s affair: one decision for two statuses.


On the 4th of December 2015 the Working Group on Arbitrary Detention of the Human Rights Council (hereinafter WGAD) adopted Opinion no. 54/2015 concerning the detention of Julian Assange, the creator of Wikileaks.[1] The content of the decision, due to its undeniable political weight, has echoed worldwide. It has been held that the deprivation of Mr. Assange’s liberty was arbitrary and in contravention of Articles 9 and 10 of the Universal Declaration of Human Rights and Articles 7, 9(1) (3) (4), 10 and 14 of the International Covenant on Civil and Political Rights, with only one dissenting opinion of member Vladimir Tochilovsky. This post aims to provide a general overview of the decision, and endeavours to underline, particularly, the different sensitive matters arising from the two different statuses of Mr Assange: that of an asylum seeker and that of a defendant.


The Case                   

Apart from the well-known US issue linked to the Wikileaks scandals, Mr. Assange has faced a controversial judicial case which resulted in his deprivation of liberty.[2] In 2010, a Swedish prosecutor started an investigation against Mr. Assange following several allegations of sexual misconduct. As a result, Mr Assange spent 10 days in isolation in London’s Wandsworth prison, 550 days under house arrest, and thereafter has been in the confines of the Embassy of the Republic of Ecuador in London. In 2012, he was granted political asylum by Ecuador, based on the risk of extradition to Sweden without any guarantee of non-refoulement to the US, where he risked facing the death penalty. According to the source, in 2014 the Stockholm District Court upheld a European Arrest Warrant (EAW) with the aim of returning Mr. Assange back to Sweden for questioning regarding an ongoing preliminary investigation.

The WGAD was requested to express its opinion on the circumstances on which Mr. Assange’s detention was based, in light of his current status of asylum seeker, his juridical situation in Sweden and the role of the UK in managing the European Arrest Warrant issued by the Swedish authorities.


The Issues

The WGAD decision’s pathway could be traced through three different points: the definition of Mr. Assange’s condition as “detention”, which the WGAD was requested to qualify as arbitrary or not; the binding force of the international law obligation imposed on the UK and Sweden to accept the status of Mr. Assange as a political asylum seeker; and the parallel juridical matter giving rise to the minimum standard of guarantees which must be granted to the suspect/accused in criminal proceedings.

In relation to the first point, the source’s allegations underlined the necessity to establish a proper definition of detention which should take account of the particular circumstances of Mr. Assange’s experience as an asylum seeker.

In this sense, the source prompted the Working Group to follow three key points in its reasoning: the inability of Mr. Assange to access the full benefit of the grant of asylum; the continuing and disproportionate period of time which has characterized the denial of access to these guarantees; and the ground of the EAW issued by the Swedish authorities.[3] The Swedish Government supported that Mr. Assange had voluntarily decided to remain in the confines of the Ecuadorian Embassy, without the possibility for the Swedish authorities to control his decision. The UK Government considered the use of the Embassy’s premises in avoiding arrest as a violation of the Vienna Convention on Diplomatic Relations, according to the duty of the UK to extradite him as requested by Sweden through the EAW.[4] Both State responses seem to have disregarded the crucial factor behind this matter: Mr Assange’s fear of extradition to the US. Against this backdrop, and specifically the risk of the death penalty, it should have been harder for them to come to the conclusion that Mr Assange’s choice of self -confinement was a free determination.[5]

The second point dealt with by the WGAD was the finding of a binding international law obligation imposed on the UK and Sweden to recognise Mr Assange’s status as a political asylum seeker, in light of the asylum granted to him by the Republic of Ecuador. The Governments’ responses were based on the limited scope of the Latin American Convention on Diplomatic Asylum, ratified by Ecuador but not by the UK and Sweden, due to its nature as a regional instrument. The Swedish Government affirmed that “the Latin American Convention on Diplomatic Asylum does not constitute general international law. On the contrary it is a regional instrument and no similar instruments or practices exist elsewhere”.[6] They also affirmed that general international law does not recognise diplomatic asylum as implied by the source and this position found support in the 1950 Asylum case of the International Court of Justice. The ICJ excluded any obligation by a third State to recognise the asylum granted to an individual by another State.[7] However, as underlined by the comments from the source, at least two legal provisions create international law obligations both for the UK and Sweden, namely, Article 14 of the Universal Declaration of Human rights;[8] and Article 1 of the 1951 Refugee Convention, as well as subsequent Protocols on the status of refugees, which define all the related obligations for States Parties. First among others, is the non- refoulement provision.[9] Despite the understandable (political) reservations by both Governments in unconditionally recognising Mr. Assange as a political refugee, there was no justification for relying only on the “regional” value of the political asylum granted by Ecuador according to the Latin American Convention, without considering other international obligations as well.[10]

 The last point dealt with by the WGAD was in relation to the European Arrest Warrant and the minimum standard of fair trial guarantees which should have been granted to Mr Assange, as a defendant, by the Governments. The EAW, issued by the Stockholm Court against Mr. Assange, presented several controversial points. Notably, the Swedish authorities underlined that there was no casual link between their EAW and the self-confinement of Mr. Assange in the Ecuadorian Embassy. This overlooks the denial of the UK and Sweden to recognize Assange’s status as an asylum seeker, despite the worldwide publicity his case has received due to his controversy with the US. The juridical ground of the Swedish EAW remained unclear. Mr. Assange was not charged as defendant. Nevertheless, the Governments used the argument of the “criminal prosecution for ordinary crime” in order to exclude Mr. Assange’s right to asylum. That represented a clear contradiction; on the one hand, the Swedish authorities rejected the qualification of Mr. Assange as an “accused”; yet on the other hand, they used the criminal investigation to justify the EAW, as well as the denial of political asylum. It is worth noting that the EU Framework Decision of 13 June 2002 on the European Arrest Warrant clearly established, in Article 1 (paras 1 and 3), the definition of the EAW, as well as the minimum standard of procedural guarantees which must be respected.[11] In this sense, Article 1 para 3, referring to Article 6 of the European Convention on Human Rights, clearly establishes a link between the status of the requested person and the accused/suspect under investigation.[12]

At the same time, the UK’s position on the execution of the EAW was not entirely comprehensible. In the UK Court’s opinion, the extradition of Mr. Assange was deemed to be fair and proportionate, yet in 2014 a corrective legislation entered into force in the UK with the aim to – among others – bar extradition where no decision to bring a person to trial has been made. As rightly underlined by the source’s comments, the UK should have recognised both the absence of the necessary judicial grounds behind Sweden’s issuing of the EAW, and the vulnus of the procedural guarantees apparently justified by Mr. Assange’s classification as not a “proper defendant”, which de facto resulted in a clear violation of Article 6 of the ECHR and Article 14 of the ICCPR.


After a concise discussion, the WGAD concluded that Mr Assange’s deprivation of liberty must be charged as an arbitrary detention “in contravention of Article 9 and 10 of the Universal Declaration of Human Rights and Articles 7, 9(1), 9(3), 9(4), 10 and 14 of the International Covenant on Civil and Political Rights”.[13]

The different sensitive issues at stake made the WGAD’s pathway arduous to walk. The necessity to combine the delicate (political) asylum problem with the judicial cooperation matters also involved the hard juridical arguments of the disproportionality of the EAW and the violation of the minimum standard of procedural guarantees. In spite of the several criticisms as to the decision’s content, the WGAD analysed all the matters involved and summarised them in a clear and brief decision, which could have been the only way to settle the controversy easily and “rapidly”. All things considered, the evident lack of homogeneity between the several issues involved, as well as the serious political matters against the backdrop of this affair, have resulted in a conclusive decision which deserves to be appreciated.


[1]. The decision was published on the 5th of February 2016.

[2] The use of the expression “deprivation of liberty” intentionally discloses the content the decision and the opinion of the author, as the first question which the WGAD was called to solve was the qualification of the Mr. Assange’s condition as deprivation of liberty or restriction.

[3] On the question whether the self – confinement of Mr. Assange in the Embassy of Ecuador could be reasonably defined as “detention”, the source affirmed that “the Working Group on Arbitrary Detention had agreed in previous cases that a deprivation of liberty exists where someone is forced to choose between either confinement, or forfeiting a fundamental right – such as asylum – and thereby facing a well – founded risk of persecution” (Opinion no. 54/2015, adopted by the Working Group on Arbitrary Detention on its 74th Session, p. 3).

[4] The individual dissenting opinion of Tochilovsky linked the denial of the qualification of Mr. Assange’s restriction as detention to a substantial lack of competence of the WGAD in the light of its mandate. The Governments, on their side, emphasized this point to justify how the situation of Mr. Assange was the result of his own choice to not leave the Embassy.

[5] For an interesting point of view on that point, see Interview with former UNWGAD Chair and Norwegian International Law Professor Mads Andenas, in Working-Group-on-Arbitrary.html, who stated that “Liberty must be capable of being realized in actuality. Where the exercise of such liberty would have significantly coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice”.

[6] Opinion no. 54/2015, Governments’ responses, p. 6.

[7] Asylum case (Col. v. Peru), Judgment, 1950 ICJ Reps. 273 (Nov 20). On this point, see also M. Happold, Julian Assange and the UN Working Group on Arbitrary Detention, on EJIL: Talk! (, 5 Feb. 2016.

[8]Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

[9] See among others, W.T. Worster, The contemporary international law status of the right to receive asylum, Int J Refugee Law (2014), 6 (4) 477-499.

[10] The Latin American Convention on diplomatic asylum (i.e. the Caracas Convention) was adopted within the Organization of American States (OAS) and was signed by both the Republic of Ecuador and the USA. That is why it is correct to qualify it as a regional instrument of human rights law, to distinguish it from the universal tools of general international law.

[11] COUNCIL FRAMEWORK DECISION of 13 June 2002 (2002/584/JHA) on the European arrest warrant and the surrender procedures between Member States 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

[12] 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.

[13] Opinion no. 54/2015 adopted by the Working Group on Arbitrary Detention, p. 17.

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Perinçek vs. Switzerland on the backstage: the majority approach and the separate opinion of Judge Nussberger.


  1. Introduction.

On the 15th of October 2015 the Grand Chamber of the European Court of Human Rights (the Court) issued its second instance judgment in the case of Perinçek v. Switzerland. This judgment has the potential to play a central role in the Court’s case law on Article 10 of the European Convention on Human Rights (the Convention), relating to freedom of expression, as well as contributing to the wider cultural and historical debate about the sensitive issue of genocide denial.

This post will focus, in particular, on the main conclusions of the judgment and the partly concurring and partly dissenting opinion of Judge Nussberger, who contested the points in the judgment that this post will highlight as the most interesting.

2. The facts.

The case originated from the application of a Turkish national, Mr. Dogu Perinçek, a doctor of laws and the chairman of the Turkish Workers Party. During several conferences in Swizterland, the applicant publicly denied that the mass atrocities perpetrated by the Ottoman Administration in 1915 against Armenians amounted to genocide. While Mr Perincek did not deny that killings and deportations took place, he contested the legal characterisation of the acts as “genocide” and defined the term “Armenian genocide” as an “international lie”. However, on the basis of his statements, he was found guilty of “racial discrimination” under Article 261bis para 4 of the Swiss Criminal Code and he was convicted. The Chamber and the Grand Chamber, albeit on the basis of partly different reasons, held that the conviction and the associated punishment constituted a disproportionate interference with the exercise of his right to freedom of expression and violated Article 10 of the Convention. However, it is noteworthy that both Chambers also underlined the fact that their decisions did not have any implications on the ongoing debate regarding whether the massacres and deportations of the Armenians legally constituted genocide.

3. The application of Article 10 para 2: the Grand Chamber between legal concepts and historical debate.

In its judgment, the Grand Chamber tries to avoid touching upon certain sensitive issues which are not strictly relevant to its decision (such as whether the massacres constituted genocide).[1] Nevertheless, the case has raised several interesting issues, although only some of them can be qualified as legal problems, strictly speaking.[2]

The Court first analysed whether the interference with Article 10 of the Convention was lawful and had a legitimate aim (a); then, it assessed whether it was necessary in a democratic society (b).

In the course of analysing whether the interference was lawful and pursued a legitimate aim, the following controversial issues emerged: the foreseeability of both the norm and the criminal penalty, where the Court found that the approach of the Swiss authorities could reasonably be expected;[3] the definition of the “prevention of disorder” (partly contrasting with the wider concept of the “interest of public order), in regard to which it found no evidence that, at the time that they were made, the applicant’s statements were perceived by the Swiss authorities as a means of aggression capable of leading to public disturbances, in spite of the presence of both Armenian and Turkish communities in Switzerland; [4] and the protection of the rights of others (the contemporary Armenians), which the Court accepted as a justification for an interference of the applicant’s freedom of expression (the same could not be said for the protection of the honour of the victims).[5]

The Court finds that the criminal conviction of the applicant represented an unfair interference (unnecessary in a democratic society) with his freedom of expression and violated Article 10 of the Convention.

Under the Convention, the existence of a pressing social need for the interference must be balanced against the protection of the Armenian community’s rights covered by Article 8 and the right to freedom of expression.[6] In order to determine that the acts of the Swiss government were proportionate and, therefore, constituted the permissible interference with the right protected by Article 10, a link between the conviction of the applicant and the protection of the dignity of the Armenian community in general should have been established. Even if the Armenian community had possibly built its identity also based on the qualification of Armenian people as victims of mass atrocities (whose protection is consonant with the universal protection of human rights), there was no evidence that the above-mentioned link existed in the current case.[7]

Two points, among others, in the final part of the Court’s reasoning deserve particular attention.

The evaluation of the context of the interference: historical, geographical and time factors.              

The Court evaluated the geographical and historical context in which the statements were made. This stage of the reasoning inevitably involved a comparison with the phenomenon of Holocaust denial in western democracies, an issue consistently present in the background of the judgment.[8]

The Court found that the historical experience of each country must play a central role in the determination of the social and moral responsibility of States to outlaw mass atrocity denial; at this point, it is worth highlighting which public statements (and other forms of expression) are actually incompatible with democracy and human rights and, for that reason, not protected by the Article 10 of the Convention.[9] While the phenomenon of Holocaust denial in European countries had been considered extremely dangerous for the protection of the identities, because of the risk of a resurgence of racial discrimination and anti–Semitism, the Court apparently did not find this to be the case in relation to the facts related to the Armenian massacre in Switzerland in the 21st century. Although the Armenian community in Switzerland was in open disagreement with the view of the Turkish community about the legal characterisation of the 1915 events, this did not increase the risk of creating a tense atmosphere or of other dangerous consequences, such as, the promotion of racism and an antidemocratic agenda.[10] The Court also remarked that due to the considerably long time lapse between the historical events and Perinçek’s statements, it would be inappropriate to deal with them severely.[11]

The international law obligation to criminalise genocide denial. 

The Court was then called to determine whether or not the interference by the Swiss authorities could have been justified by an obligation to criminalise genocide denial under international law. In this respect, it did not find any international legislative tool (among treaties or customary law) which could reasonably create a binding international law obligation. According to the UN Human Rights Committee, the relevant provisions of the ICCPR provide that, unless the conduct, was incompatible with the prohibition of incitement to violence, hatred and racial discrimination, the freedom of expression and of opinion must be always guaranteed and protected. [12]

4. The partly concurring and partly dissenting opinion of Judge Nussberger.

In her separate (partly concurring and partly dissenting) opinion, Judge Nussberger interestingly challenged one of the main conclusions of the Court.[13] While she accepted the main conclusion on the violation of Article 10 of the Convention, even if by following a different pathway, she rejected the majority approach, contesting the unreasonable distinction between Holocaust denial and the denial of the Armenian genocide, as well as the weakness of the “geographical factor” and the “time lapse” arguments.

Judge Nussberger affirmed that it appeared to be unclear why only those sanctions imposed by the State Parties for the Holocaust denial have been considered compatible with the spirit and the provisions of the Convention. In order to justify the criminalization of its denial, the Court had referred to the notion of public order needs (that is, prevention of the incitement to violence and racial discrimination) and the historical and geographical links between the Nazi crimes and the duty of the States that had been affected, to criminalise its denial . Judge Nussberger rejected this approach, stating that these factors could lead to the wrong conclusion that it is only those States directly involved in mass atrocities and/ or genocide have the moral responsibility to distance themselves from these events.[14]

Notwithstanding the judgment’s consistent argument that there exists no international law obligation to criminalise genocide denial, the doubts created by the ineluctable comparison with Holocaust denial cannot be ignored, especially because of two elements: first, the arguments based on the ‘geographical’ factor and ‘time lapse’ do not appear to be strong enough to defend against the clear discrepancy in the way the denial of two mass atrocities of the 20th century are treated; second, the debate on the legal qualification of (and also on the search of the historical truth about)  the Armenian events of 1915 has gained a central position in the international arena which ought not to be difficulty underestimated.

5. Conclusion.

 At the end of this brief overview of the main controversial points of the final judgment in Perinçek, one could conclude that, despite several attempts at reaching a consistent and strictly legal solution to the case, the judgment has an undeniable impact on the cultural debate that cannot be overlooked.

The reasoning of the Court has offered the opportunity to reflect on some matters which emerged from the sensitive comparison with Holocaust denial, namely: first, the need to balance the freedom of the expression with the risk of compromising the public order, as well as, the sense of identity of individuals and communities, which gave an interesting point of view about protection of minorities’ rights and its link with the prevention of public disorder; second, the importance of considering both time and the historical factors when evaluating whether, in accordance with the spirit of universal protection of human rights, a duty the States to criminalise mass atrocities denial does exist.


[1] Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015) § 100 – 102.

[2] The G.C. dealt with the position of the Court regarding the “Historical debates” from para. 213 to para. 220 of the judgment.

[3] This is particularly in view of the Swiss National Council’s 2003 motion recognising the 1915 events as genocide..

[4]Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), § 148 – 154.

[5] Although the applicant’s statements did not aim to direct the accusation of the Armenian genocide “as international lie” towards the victims, his definition of Armenians as “instruments of the imperialism” could be seen as affecting the dignity of the Armenians, therefore justifying interference with his right to freedom of expression.

[6] In determining whether the decisions of the authorities were compatible with the Convention, the margin of appreciation of the national Courts in their jurisdictions must be evaluated case by case

[7] In addition, in terms of the possible remedies that could have been adopted to interfere with the right to freedom of expression (e.g. the civil remedies) within the marginal of appreciation of the Swiss authorities, the criminal conviction certainly appears to be the most serious form of interference and that has resulted in the lack of proportionality.

[8] Paras 209 – 220.

[9]  See X. v. The Federal Republic of Germany, no. 9235/1981, Commission decision of 16 july 1982, Decision and reports (DR) 29, p. 194; Marais v. France, no. 31159/96, Commission decision of 24 june1996, DR 86- B, p. 184; Witzsch v. Germany app. No. 41448/98 (ECtHR 20 April 1999), Gollnisch v. France 48135/08 (ECtHR 7 June 2011).

[10] The situation might have been different judged in a country where the hostility between the communities could have provoked hatred towards the Armenians or could have otherwise impacted the protection of the rights of the minority.

[11] About the likelihood that controversial remarks about historical facts could bring back memories of past suffering see among others Editions Plon v. France, app. No. 58148/2000 (ECtHR 2004 – IV) and Hachette Filipacchi Associes v. France, app. no. 7111/01 (ECtHR 14 June 2007).

[12]  CCPR/C/GC/34, 102nd session of the UN Human Rights Committee.

[13] The judgment also has a Joint dissenting opinion of Judges Spielmann, Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kuris and an Additional dissenting opinion of Judge Silvis, joined by Casadevall, Berro and Kuris.

[14] Then, to support this affirmation, he added that “to seek to vindicate the rights of victims of mass atrocities regardless of the place where they took place is consonant with the spirit of the universal protection of human rights and wholly sufficient to justify legislation of this kind” in Judge Nussberger, separate opinion, in Perincek v. Swizterland (GC) ( ECtHR, 15 October 2015), recalls at S.A.S. v. France (GC) (ECtHR 2014), § 153.

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Judgment n. 1/2015 of the Italian Constitutional Court on the special features of juvenile justice: collegiality and specialisation of the youth tribunal in criminal proceedings against young defendants

  1. Introduction

At the beginning of 2015, the Italian Constitutional Court got the opportunity to reaffirm some of the core principles of the juvenile criminal justice system that have been established under international legal instruments. With judgment n. 1/2015 the Constitutional Court declared two legal provisions unconstitutional: Article 458 of the Italian Code of Criminal Procedure (which regulates the application of the defendant to be judged by summary trial [in Italy, giudizio abbreviato] after a request for an “immediate” trial issued by the Prosecutor) and Article 1 of the D.P.R. (Decreto del Presidente della Repubblica) n. 448/1988 (the opening provision of this sort of “special code” of criminal procedure regulating criminal proceedings against minors).

In particular, the judgment focused on two main aspects of the criminal proceedings against minors: the collegiality of the tribunal appointed to judge a young defendant who has applied to be judged under the “summary trial” procedure; and the multidisciplinary nature of the proceedings, guaranteed by the mixed composition of the Youth Court, formed by one professional judge and two lay experts (in social sciences, pedagogy, psychology etc.). The Court found that the provisions (in combination) violate the fundamental principle of equality (Article 3 of the Italian Constitution), the right to defence (Article 24 of the Italian Constitution) and the principle of youth protection (Article 31 of the Italian Constitution). The Court also reaffirmed, indirectly, the requirement to respect the minimum standard of procedural guarantees in juvenile criminal justice, in accordance with the national and international tools in this field[1].

2. The “summary trial” under Italian criminal procedure (in ordinary and juvenile justice).

In the case at issue, the referrals[2] criticised some procedural aspects of the Italian summary process against young defendants. Under the ordinary criminal procedure applicable to adults, the defendant has the right to apply to be tried in a summary trial which consists of: being brought before a single judge, usually the Giudice dell’Udienza Preliminare (pre-trial judge); and being judged at a preliminary phase of the proceedings (the pre- trial phase), only on the basis of the case files prepared by the Prosecution during the investigation.

The Italian Code of Youth Criminal Procedure (D.P.R. 448/1988) also provides for the opportunity for young defendants’ cases to be conducted, at the pre–trial phase, by summary trial. The Code does not, however, expressly regulate the procedure where a young defendant applies for a summary trial, following a request issued by the Prosecutor (i.e. richiesta di giudizio immediato) with the aim of bypassing the pre–trial phase.  This legal vacuum has, so far, been resolved[3]  by applying the general provisions laid down in the Code of Criminal Procedure, specifically Article 458, which regulates summary proceedings generally. In accordance with this provision – and in line with the settled case law of the Italian Supreme Court of Cassation – the young defendant, after presenting a request for summary trial is therefore brought before a single judge of the Youth Court (G.I.P. presso il Tribunale per i Minorenni) and not before a mixed bench as is usually the case when the defendant is below the age of 18. This creates an exception to the ordinary procedure of conducting the pre–trial phase against young defendants by the Youth Court, sitting in collegiality, composed of one professional judge and two lay magistrates who are experts in the field of psychology and pedagogy

3. The allegations and the conclusion of the Court.

In the context of this legal vacuum, the G.I.P of Bologna submitted three referrals to the Italian Constitutional Court questioning the compliance of Article 458 and Article 1 with Articles 3, 31 and 24 of the Italian Constitution.[4] In particular, the Judge questioned whether there was a potential violation of one of the main principles of juvenile justice, as internationally recognised: the collegial and multidisciplinary composition of the youth courts at every stage of the proceedings.

In its reasoning, the Court followed the pathway offered by the judge a quo and gave an overview of the international tools that the applicant provided to support his allegations. The judgment has three notable aspects. Firstly, the main question is related to the suitability (i.e. “idoneità”), not to the competence (i.e. “competenza”), of the (single) judge chairing a single bench in the case of a summary trial against a young defendant. This is a crucial point: according to Article 25 of the Code of Criminal Procedure and to the case law of the Constitutional Court, matters of competence must be solved by the Italian Supreme Court of Cassation with a binding decision. In similar cases, there is no way for the Constitutional Court to overturn a decision of the Supreme Court and all referrals on this point would be inadmissible[5].

Secondly, in dealing with the merits about the suitability of the single judge, the Court  reaffirmed the fundamental role of collegiality in the judicial decision-making process against minors. It is only where the court sits as a panel of more than one judge  that it is indeed possible to achieve the aims of juvenile justice: the personalisation of the proceedings, the rehabilitation of the young people in trouble with the law and the application of the rules of restorative justice. Lastly, the Court affirmed that the juvenile system must also be characterised by the multidisciplinary background (and approach) of the tribunal. In particular, it held:

Questa Corte ha avuto modo di sottolineare come il principio costituzionale espresso dall’art. 31, secondo comma, Cost. richieda l’adozione di un sistema di giustizia minorile caratterizzato dalla specializzazione del giudice, dalla prevalente esigenza rieducativa, nonche’ dalla necessita’ di valutazioni, da parte dello stesso giudice, fondate su prognosi individualizzate in funzione del recupero del minore deviante (sentenza n. 222 del 1983).’ [6].

The Court agreed with the G.I.P. and found a violation of the principle of equality (Article 3 of the Constitution) because of the unreasonable unequal treatment of the minors who apply for the summary trial after a request of “immediate trial” issued by the Prosecutor, compared to the ordinary procedure applicable to minors.

4. Recalling the international framework.

Judgment n. 1/2015 also offered the opportunity to recall discussions about the international framework which has inspired the whole Italian juvenile justice system. The 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) represent, probably, the most important compendium of principles and good practices in the administration of justice for juveniles. In particular, Rules 1.6, 2.3, 14 and 16.1 provide some guidance on the minimum standard requirements that every competent authority in charge of handling young offenders must have: a commitment towards improving the level of competence of involved personnel; special mixed qualifications and a commitment to training; a suitable and proper approach in handling and understanding the needs of the offender, as well as their social and legal situations.

Additionally, in February 2007, the (UN) Committee on the Rights of the Child (Forty-fourth session Geneva, 15 January – 2 February 2007) issued its “General Comment no. 10 (2007) Children’s rights in juvenile justice”.

Chapter V of the document, on “The organisation of juvenile justice”, highlights the importance of the specialisation of the competent authorities with the aim of ensuring the effective functioning of youth justice:

As stated in article 40 (3) of CRC, States parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children in conflict with the penal law.(…)

  1. A comprehensive juvenile justice system further requires the establishment of specialized

units within the police, the judiciary, the court system, the prosecutor’s office, as well as

specialized defenders or other representatives who provide legal or other appropriate assistance

to the child.’.


Hence, the best way to implement these international principles in the Italian juvenile justice system was throughout the instruction of a youth court which was characterised by the multidisciplinary nature and the mixed background of the bench.

The value of the judgement is therefore twofold: first, it underlined the unreasonable unequal judicial treatment linked to a legal vacuum by challenging a number of problematic domestic procedural matters; secondly, it reaffirmed the main inspirational principles, entrenched in the international instruments mentioned above, on the fundamental requirements of the juvenile justice system.

[1] See the full text of the D.P.R. 448/1988 (as for the national instruments); see the  United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the UN Convention on the Rights of the Child (General Assembly Resolution 44/25, 20 November 1989), European Convention  on the Exercise of Children’s rights (Strasbourg 25 January 1996) (as for the international instruments).

[2] Court orders no. 17, 18 and 19/2014 of the Giudice per le Indagini preliminari di Bologna – G.I.P.-  judge a quo.

[3] According to Article 1 of the D.P.R.

[4] Respectively, the principle of equality, the principle of youth protection and the right to defence.

[5] In fact, the G.I.P. of Bologna promoted the referrals during the 4th stage of each trial (i.e. giudizio di rinvio) after the decisions of the Supreme Court of Cassation (one for each case) holding that the competence/the jurisdiction must be recognised to the G.I.P. sitting as single judge and not in collegiality.

[6] Corte Cost., sent. n. 1/2015, para 5 (recalling at Corte Cost., sent. n. 222/1983).

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Yuditskaya and others v. Russia at the ECtHR: a direct violation of the right to respect for private and family life and a possible link to the right to a fair trial.

  • Introduction

On 12 February 2015, the First Section of the European Court of Human Rights (ECtHR) issued  its judgment in the case of Yuditskaya and others v. Russia. The case originated in five applications against the Russian Federation, and it presents the opportunity to evaluate the interpretation of Article 8 of the European Convention on Human Rights (ECHR), that is, the protection of the “[r]ight to respect for private and family life”. This post aims to examine the Court’s reasoning with regard to the application of Article 8 and the higher standard of protection it affords in cases that involve searches in lawyers’ premises because of the indirect implications on Article 6, namely, the right to a fair trial.

  • Factual background

The relevant circumstances of the case can be summarised as follows: in the context of an investigation related to a bribery case involving the director of a State unitary enterprise and a bailiff, the Leninskiy District Court of Perm issued a warrant authorising a search in a law firm. The search was aimed at collecting documents which were supposed to be relevant as evidence in criminal proceedings. This decision was justified on the basis of the prosecution’s allegations that one of the lawyers, Counsel I.T., who was brother of the allegedly corrupt bailiff, had provided a fictitious contract in order to cover up the illegal bribery between the enterprise and the bailiff.

The ECtHR followed the usual three-stage test in evaluating the complaint and, ultimately, concluded that there had been a violation of Article 8 ECHR.

  • First stage test: whether the complaint falls within the scope of one of the rights protected by Article 8 and whether there has been an interference with them.

First, the Court had to clarify whether the complaint fell within the scope of one of the rights protected by Article 8 and whether there had been an interference with them. In this sense, the first step consists of verifying whether the actions of the authorities affected the “home” and “private life” as defined by the Court.

Article 8 protects the home and correspondence as inviolable. Those terms have been interpreted broadly by the Court as including professional premises and any activities or premises forming part of a lawyer’s daily life. In the case of Niemietz v. Germany,[1], the Court held as follows:

« [I]t is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.

  1. More generally, to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities».


This interpretation has been used by the ECtHR in several cases dealing with similar issues. In the most recent Yuditskaya case, the Court concluded that there had been a violation of Article 8. The reasons were twofold: the first relates to the right to the private and family life of Counsel I.T. Indeed, in addition to documents allegedly connected to the lawyer involved in criminal investigations, the search also included privileged material of other clients, whose cases were completely unrelated with the charge at issue. The second concerns the involvement of his colleagues’ computers, folders and any other material which were basically unrelated to the investigation.

  • Second stage test: whether the interference is justified pursuant to Article 8 para. 2: lawfulness and legitimacy of aims in the light of public interest grounds.

The second step considers whether the interference committed by the public authority was justified under the terms of Article 8 para. 2, which requires that every exceptional interference must be carried out in accordance with the law, justified by the public interest, and necessary in a democratic society.

With regard to compliance with the law, the Court found that the search in the law firm had been authorised by a judicial decision, in accordance with the domestic code of criminal procedure: this, in itself, was enough to affirm the lawfulness of the act and the legitimacy of its aims.[2] However, as subsequently highlighted by the Court, the search warrant had been issued in very broad terms and this had probably resulted in such an unrestrained search by the investigators.[3] In fact, the vagueness of the decision in relation to the scope of the search warrant should have been considered, itself, as a ground for the unlawfulness of the act, especially in the light of the interpretation given to the domestic Code of Criminal Procedure (CCP) and the Advocates Act by the Constitutional Court of Russian Federation, requiring that the scope of the search should be defined in similar cases.[4]

  • Final stage test: the proportionality of the measure and its necessity in a democratic society.

The final test aimed to verify whether the balance between individual rights and the public interest had been achieved through the correct application of the principle of proportionality, pursuant to the values of democratic society.[5]

As underlined by the applicants and confirmed by the Court, the reason why the search against Biznes i Pravo lacks proportionality is twofold: it was conducted across the entire office despite the fact that the applicants had voluntarily handed over all the relevant documents to the investigators;[6] no special safeguard was adopted to prevent interference with professional secrecy and other delicate issues linked to the privileged material found in the law firm.

The Court also reaffirmed the central role of lawyers in the administration of justice, by recalling the precedent established in Elci and Others v. Turkey[7], where the Court held as follows:

«The Court would emphasise the central role of the legal profession in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practise their profession without undue hindrance is an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention, in particular the guarantees of fair trial and the right to personal security. Persecution or harassment of members of the legal profession thus strikes at the very heart of the Convention system. For this reason, allegations of such persecution in whatever form, but particularly large scale arrests and detention of lawyers and searching of lawyers’ offices, will be subject to especially strict scrutiny by the Court».[8]

In the Yuditskaya and others it seems that the Court took a similar, strict approach in evaluating whether there had been a lack of proportionality and, therefore, gross arbitrary abuse in violation of Article 8 because of the involvement of a group of lawyers in the search. This is a correct application of the threshold of proportionality, reflecting the one adopted in similar cases[9] where it was determined that two core principles must be in balanced: on the one hand, the protection of the public interest in the prevention of crime and, on the other hand, the respect for the proper administration of justice, in accordance with the principles of the fair trial.

  • The search warrant against lawyers issued in violation of Article 8 and its indirect consequences on the general application of Article 6.

It is interesting to observe that, following the reasoning adopted in Niemitz v. Germany, Elci and others v. Turkey and Smirnov v. Russia, the Court reiterated that[10]:

«Having regard to the materials that were inspected and seized, the Court finds that the search impinged on professional secrecy to an extent that was disproportionate to whatever legitimate aim was pursed. The Court reiterates in this connection that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention (see Niemietz, cited above, pp. 35-36, § 37)»[11].

As mentioned above, the absence of proportionality found by the Court is based on the contrast between the manner in which the search was carried out and the level of guarantees that lawyers operating in a democratic society should expect in similar cases.

The case presents a violation of Article 8 for the reasons cited above and, simultaneously, highlights the risk of a violation of Article 6 where an act could also have an effect on the right to a fair trial, because of the central role of the category of person concerned by the search.

Therefore, it is remarkable that, although the violation of Article 6 was not among the allegations put forward by the applicants, the Court considered, as it did in its previous case law, the effects that the violation of Article 8 could have in relation to the right to a fair trial. This consistent approach leads to the conclusion that there could be a very close link between the observance of Article 8 and the administration of justice – as guaranteed by Article 6 – when a fundamental category of judicial operators (i.e. lawyers) is involved.

In other words, since lawyers have a core responsibility of handling sensitive situations and information issues in the performance of their duties, the standard of guarantees applied to them in cases such as Yuditskaya should be established in the light of the public interest for a proper administration of justice.

[1]             Niemetz v. Germany, 16 December 1992, pp. 9 – 11.

[2]             Yuditskaya and Others v. Russia, 12 February 2015, p. 5.

[3]             ibidem, para. 29, p. 6.

[4]             ibidem, p. 3.

[5]             For a deeper, interesting  analysis about this point please see Ursula Kilkelly, The right to respect

                for private and family life, A guide to the implementation of Article 8 of the European Convention on Human Rights, Human rights handbooks, No. 1, Directorate General of Human Rights Council of Europe, 2001.

[6]             Yuditskaya and Others v. Russia, 12 February 2015, p. 3.

[7]             Elci and Others v. Turkey, 13 November 2003 – 24 March 2004.

[8]             ibidem, para. 669, p. 108.

[9]             See Niemetz v. Germany, 16 December 1992, Elci and Others v. Turkey,13 November 2003 – 24 March 2004, Smirnov v. Russia, 7 June – 11 November 2007.

[10]           Smirnov v. Russia,7 June – 11 November 2007.

[11]           Smirnov v. Russia, 7 June – 11 November 2007, p. 10.

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The long walk of Turkey to the protection of fundamental rights of detainees: some comments on the latest report of the CoE.

1. Introduction

On 15th January 2015 the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report issued after its last visit to Turkey between the 9th and the 21st June 2013, that coincided with the “Gezi Park” protests. The publication of the report was requested by the Turkish Government which also issued a subsequent reply.

The work of the Committee arose out of the need to observe and report upon the conditions of detainees in Turkey, particularly the treatment of the inmates in police custody or serving a custodial sentence. This analysis  highlights some parts of the complex document –  including the observations and recommendations of the CPT – concerning allegations of ill-treatment suffered by detainees in general, as well as by national and foreign protesters, journalists and lawyers (among others) in Police custody during the Gezi Park protests. This post aims, in particular, to review some aspects of the report and the Turkish authorities’ response in the light of the events at Gezi Park, as well as the current state of fundamental rights protection in Turkey.

2. The content of the Report of CPT.

The CPT visited different establishments, such as the Ankara, Istanbul and Diyarbakir Police Headquarters and various national prisons. It also heard depositions of detainees and consulted various institutions and organisations (e.g. Representatives of Ministry of Justice, Interior, Health and National Defence, the Turkish Bar Association, the Human rights Association and the Human Rights Foundation of Turkey). The Committee expressed its appreciation for the Turkish authorities’ cooperation in allowing it to perform its investigative duties. The Turkish government’s intention to cooperate has also been demonstrated in the issuing of its response.

The data which emerged from the CPT report highlights some crucial aspects of the conditions of police custody and the ill-treatment suffered both in general and in the particular context of the Gezi Park demonstrations.

A. General Observations

The Committee documented a massive number of allegations, by detained persons, of physical and verbal ill-treatment by police officers, especially the disproportionate use force at the time of apprehension: these reports came, largely, from the south eastern part of Turkey and related to delays in the exercise of the right of notification of custody to relatives, and the denial of the rights to promptly contact and meet a lawyer in private and the presence of a lawyer during questioning.

The CPT also underlined “that it has serious misgivings about certain amendments which were made in 2006 to the 1991 Law on the Prevention of Terrorism” (report p. 15, para. 27) in relation to suspects of terrorism-related offences: these amendments introduced the possibility to deny the right of access to a lawyer in the initial 24 hours of custody and, upon the request of Prosecutor, granted by a judge, to require an officer to be present at the meeting between the suspect and his/her lawyer, where it is suspected that the latter might be a valid connection between the detainee and the terrorist organisation.

In the light of several allegations it received, the Committee strongly recommended the respect for the right of suspects and detainees to be clearly informed of their fundamental rights orally and, subsequently, in writing through the Suspects Right Form, without delay, as provided by the Detention Regulation. The binding right to a medical examination and to have access to a doctor in private were also stressed.

The CPT repeatedly reiterates the recommendation for all departments (not only those related to terrorism) to monitor and record the interviews of detained person by law enforcement officials as a key additional safeguard against ill-treatment.

B. Observations in the context of Gezi Park protests

The delegation visited different prisons with the aim of investigating police crowd control operations in relation to the demonstrations that were ongoing at that time: it interviewed persons deprived of their liberty and estimated how many protesters were detained in ordinary, juvenile and anti-terror departments.

The delegation was informed by the authorities that a substantial number of demonstrators were not held in detention in Ankara and Istanbul for more than 24 h. Despite that, several demonstrators who had been detained made allegations of: the disproportionate use of force during apprehension; different forms of violence and abuse (including verbal abuse); and the use of arms, such as the tear gas, in enclosed and confined spaces.

Some detainees also complained that police officers had intervened in demonstrations without, or concealing, their identification number. Several others reported that officers had been present during medical examinations that were carried out on them while they were in custody.

Despite the violations cited above, in point A, in the context of the Gezi Park protests, the delegation favourably noted the generally positive implementation of fundamental safeguards against ill-treatment following police operations; people in custody were informed of their rights and also had the opportunity to inform relatives about their condition and usually, if requested, to access a lawyer within a reasonable time. This was positive, especially when compared to the general situation in the rest of Turkey, for example, the departments in South Turkey. Nevertheless, the delegation still requested information about the stage of investigations against the officers suspected of committing the abuse.

3.  Legal Analysis

The CPT submitted a considerable number of recommendations. Despite the complexity and insightfulness of the report in most respects, in the section regarding ill-treatment in police custody, the Committee applied an interpretation of the “effective right to access a lawyer” that is unconventional, particularly in relation to the contemporary interpretation of the guarantee.[1] It specified that the objective of guaranteeing effectiveness “is not linked to issues of due process or the right to a defence; it is aimed at preventing ill-treatment.” Undoubtedly the clear intention of the Committee was to highlight the binding duty to prevent the risk of intimidation and ill-treatment “following the deprivation of liberty”, before the affirmation of any other guarantees. However, under the most recent interpretation of Article 6 of the European Convention of Human Rights, the right to an effective defence includes the whole gamut of guarantees linked to a suspect’s status, from the beginning of the investigation or the first application of a measure depriving liberty. The specification of by the Committee is, therefore, probably unnecessary.

The Turkish response

In its response to the report, the Turkish Government expressed its intention to implement the recommendations. It also answered several requests for information and clarified certain points. Its carefully drafted, detailed document seemingly aimed to answer all the questions raised by the CPT, in the same spirit of cooperation shown during the visit of the delegation. Despite this, the document did not properly address all concerns. For example, it did not give sufficient information about the stage of its investigations, prosecutions or disciplinary measures against those responsible. Neither did the Government indicate its willingness to condemn the numerous cases of abuse, suffered both in police custody, in general, and during the demonstrations of Gezi Park, in particular.

On the basis of the allegations in the Report, as well as the Response, it would appear that two of the areas in which there is a high incidence of police abuse are the Diyarbakir and Sanliurfa areas in south eastern Turkey. It is notable that a large part of the Kurdish minority still lives in these areas, particularly in Dyarbakir. This is probably relevant to the evaluation of the general Turkish situation in the field of protection of fundamental rights, above all in the matter of the historical controversial relationship between Turkey and Kurdish ethnic minorities.

The importance of the Report and the comprehensive Response of the Turkish Government on such a sensitive topic is linked to the necessity for full transparency about the policy of binding fundamental rights of individuals. Despite the notable improvements and positive cooperation shown by Turkey to the CPT, the current state of fundamental rights protection still appears to be extremely critical. Furthermore, as noted by Human Rights Watch last December, it appears the Turkish Government has proposed the adoption of several measures aimed at expanding police powers of search and detention and, at the same time, circumventing the prosecutor and judicial control).

Moreover, on 15th January 2015, the European Parliament adopted a resolution on freedom of expression in Turkey, after having “virtually” observed the recent arrests of journalists and media executives and stressing that the operations must respect the rule of law and freedom of media.

4. Conclusion

Over the last few years, the European Union has repeatedly discussed Turkey’s admission into the EU. Despite the extraordinary history of this country since the new-birth under Mustafa Kemal Ataturk, unfortunately the continuing violation of human rights continues to act as one of the factors that prevents the E.U. from considering the opportunity to welcome Turkey in the Union. The current tensions in the social and political fields, as well as the human rights problems reflected in the report, represent the enduring clash between the will to move forward and the repeated, continuing violations, which Turkey has not yet succeeded in overcoming.

[1] Report of the CPT, p. 16.

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