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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 http://religionandpolitics.org/2016/05/03/the-eu-turkey-agreement-on-refugees-echo-of-a-tragic-past/ 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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Italy and the Crime of Torture: a story of impunity

On 7 April 2015 the Fourth Chamber of the European Court of Human Rights (ECtHR) issued its decision in Cestaro v. Italy, which condemned Italy for violating article 3 of the European Convention of Human Rights (ECHR), both in its procedural and substantial aspects. In particular, the Court found that the ill treatment perpetrated by the Italian police in the night between 21 and 22 July 2001 within the School ‘Diaz-Pertini’ (Genoa, Italy) are to be considered as acts of torture.[1] This post focuses on the main reasons that brought the Court to this conclusion and aims to provide some preliminary remarks on the draft law, which is currently under the examination of the Italian Parliament. It is argued that such a draft law might not adequately comply with the procedural obligations deriving from article 3 ECHR.

The judgment at issue stems from the disorder that took place in Genoa during the no-global summit organised by the Genoa Social Forum (GSF), which aimed to discuss the issues on the agenda at the G8 summit. Subsequent to the tragic events which had culminated, a few days before, with the death of Carlo Giuliani, and following the closure of the works of the G8 summit, around 500 officers were involved in a police operation on the night of 21 July. On that occasion, 93 people, who had come to Genoa for the Social Forum and were legitimately using the School as sleeping space, were attacked and arrested.[2] Significantly, 78 out the 93 people arrested were injured to the point of needing hospital care.[3] Moreover, any ex post facto attempt to justify these events turned out to be fallacious and intentionally misleading.[4]

The European Court’s findings

The Court concluded that a procedural and substantial violation of Article 3 ECHR had thus arisen. On the substantive violation, the Court declared that les tensions qui, comme le prétend le Gouvernement, auraient présidé à l’irruption de la police dans l’école Diaz- Pertini peuvent s’expliquer moins par des raisons objectives que par la décision de procéder à des arrestations médiatisées et par l’adoption de modalités opérationnelles non conformes aux exigences de la protection des valeurs qui découlent de l’article 3 de la Convention ainsi que du droit international pertinent.[5]

As for the procedural violation, the conclusions reached by the Court are particularly interesting. The main reason for the Court to conclude in favour of a procedural violation of article 3 ECHR is that, in spite of its ratification of both the ECHR (in 1955) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (in 1988), Italy still needs to adjust its legal order by introducing a crime (delitto) of torture in its Penal Code. On the one hand, most of the conduct relevant for the case at issue might have, at least in theory, been punished by being ascribed within other categories of crimes. On the other hand, the international crime of torture constitutes an unicum, especially in terms of its authors, the applicability of a statute of limitations, and the possibility to grant measures such as amnesties and pardons when torture is concerned.

It is worth noting that none of the accused for the conduct discussed in the present case has been condemned by the Italian Courts for the crimes they were accused of in the absence of a crime of torture, namely, the crimes of simple and aggravated assault.[6] All the accused, in fact, benefitted from the expiration of the time limit for prescription, whereas those accused of perjury, calumny, and abuse of authority could also enjoy the benefits deriving from the 2006 statute (i.e., legge n. 241 del 29 luglio 2006), which provided for a general reduction of 3 years of the period of imprisonment (or pardon). In this regard, the Court has recalled as follows.

[E]n matière de torture ou de mauvais traitements infligés par des agents de l’Etat, l’action pénale ne devrait pas s’éteindre par l’effet de la prescription, de même que l’amnistie et la grâce ne devraient pas être tolérées dans ce domaine. Au demeurant, l’application de la prescription devrait être compatible avec les exigences de la Convention. Il est dès lors difficile d’accepter des délais de prescriptions inflexibles ne souffrant aucune exception (…). Il en va de meme du sursis à l’exécution de la peine (…) et d’une remise de peine.[7]   Therefore, [l]a Cour considère dès lors que c’est la législation pénale italienne appliquée en l’espèce (…) qui s’est révélée à la fois inadéquate par rapport à l’exigence de sanction des actes de torture en question et dépourvue de l’effet dissuasif nécessaire pour prévenir d’autres violations similaires de l’article 3 à l’avenir.[8]

The Italian draft law introducing the crime of torture in the Italian Penal Code

The Strasbourg Court has noted that on 5 March 2014 the Italian Senate has finally approved a draft law (i.e., disegno di legge N. 10), aiming at ‘introducing the crime of torture’, which, since 14 April 2015, has been officially registered on the agenda of the Italian Camera dei Deputati. Needless to say, this might be an important and positive step towards the end of impunity when it comes to torture. However, in order to see whether or not this provision would substantially allow Italy to comply with its international obligations, an analysis of the draft law seems here necessary.

First, according to some of the Senators who originally submitted this draft law, ‘il reato qui configurato è di natura comune in quanto il reato può essere commesso da chiunque’. Hence, the Senators claimed they aimed at providing an ‘even broader definition’ of the crime of torture than the correspondent international crime, as the draft law does not incorporate the element of the participation of a state agent. As Antonio Cassese pointed out, however, [l]a necessaria partecipazione di un organo (rappresentante) – de jure o de facto – dello Stato alla realizzazione della condotta tipica, discende dal fatto che in questo caso la tortura è considerata punibile, dalle norme di diritto internazionale, anche quando essa costituisce un episodio singolo o sporadico.[9]

Therefore, according to Cassese, for determining the international crime of torture, one single episode might be deemed sufficient, and this because a state agent commits or permits, or even tolerates such a conduct. On the contrary, the draft law currently under the examination of the Italian Parliament makes reference to ‘violenze o minacce gravi, ovvero (…) trattamenti inumani o degradanti la dignità umana’, that is, to several episodes. In other words, what had been conceived to be ‘an even broader’ crime with respect to the international one, might in fact turn out to be a narrower one.

Moreover, it is exactly the (active or passive) role of the State throughout its agent(s) that determines, inter alia, the gravity of such a crime. On the contrary, the draft law approved by the Senate regrettably considers as a mere aggravating factor the fact that the crime is committed by a de iure state agent, and it punishes the incitement to commit torture, even if an inchoate one, only when this comes from such a state officer. All cases concerning acts of torture committed by any de facto agent, or with the state officer(s) omitting to act to prevent or punish the commission of such an act by his subordinates, are therefore not included within the meaning of the provision under consideration. In this respect, the doctrine of the command responsibility[10] might not find an adequate recognition.Having regard to the circumstances that led to the condemnation of Italy in Cestaro v. Italy, this is particularly unfortunate.

Also, this draft law does not provide for any differences with regard to the statute of limitations. As a consequence, the ‘ordinary’ statute of limitations will apply to torture, with the only exception, pursuant to article 157 of the Italian Penal Code, of the case in which torture results in the death of the victim(s), an event which is in fact punished with the so-called ‘ergastolo’, namely, an imprisonment lasting for 30 years. Finally, according to what the Court ‘recalled’ in the present case,[11] a provision incorporating the international crime of torture should provide for the inapplicability of measures such as a general reduction of punishment (indulto).

It follows that despite the efforts of the Italian Parliament aimed at putting an end to such an embarrassing condition of impunity when it comes to torture,[12] Italy might still incur in international responsibility, as the draft law currently under examination of the Italian Parliament presents significant flaws and departs from the relevant international obligations.

[1] Cestaro v. Italy App no 6884/11 (ECtHR, 7 April 2015) at 190.

[2] Corte di Cassazione, Judgment no 38085 of 5 July 2012.

[3] ibid.

[4] The Italian Corte di Cassazione called it ‘una complessa opera di mistificazione’. See Corte di Cassazione, supra note 2 as cited in Cestaro v. Italy, supra note 1, at 184.

[5] Cestaro v. Italy, supra note 1, at 189.

[6] ibid., at 221.

[7] ibid., at 208.

[8] ibid., at 225.

[9] Antonio Cassese, Lineamenti di diritto internazionale penale. I Diritto sostanziale (2005) 159.

[10] William Schabas, An Introduction to the International Criminal Court (2009) 233-235.

[11] Cestaro v. Italy, supra note 7.

[12] ibid., at 73.Palazzo madama

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