APPEAL TO THE INSTITUTIONS ABOUT THE
SERIOUS AND IMMINENT RISK OF WIDESPREAD VIOLATIONS OF THE FUNDAMENTAL RIGHTS OF
REFUGEES AND MIGRANTS PRESENT IN LAMPEDUSA
Amnesty International Italia
Arci
Asgi
Casa dei diritti sociali-Focus
Centro Astalli
Cir
Comunitˆ di S.Egidio
Federazione delle Chiese Evangeliche in Italia
Medici Senza Frontiere
Movimento migranti e rifugiati di Caserta
Save the Children
Senzaconfine
Rome, 23 January 2009
The signatory associations and protection
bodies express their very strong concern regarding some choices made by the
Italian government in relation to the overall management of the arrival of
foreign citizens in Lampedusa.
Contrary to what has been happening since
February 2006, in fact, it turns out that the interior minister has
suspended any transfers of foreign citizens from the Lampedusa first aid and
reception centre (Centro di primo soccorso e accoglienza, CSPA) towards other
structures found in the national territory. The same interior minister has
also provided, via his own decree dated 14 January 2008, to proceed
immediately, as an emergency, to the transfer of the Territorial Commission for
the recognition of the right to asylum of Trapani (which is territorially
competent) to the island, so that all the asylum applications submitted in
Lampedusa may be examined promptly by the Commission of Trapani itself, while
keeping the applicants in the first aid and reception centre.
To sum up the situation, a substantial part
of the foreign citizens who have arrived in Lampedusa since late December are
currently held in the CSPA (on 21 January 2008 they were over 1800), located in
a structure that has been active since 1 August 2007, with 381 places
available, a capacity that may be increased, when necessary, to 804.
We highlight the problems detailed below.
1. Alarming conditions
As has been said, the current situation sees
over 1800 people present in a centre whose maximum capacity is 804 places. It
is glaringly obvious that this entails serious problems of overcrowding,
worrying hygienic-sanitary conditions and an alarming promiscuity between men,
women and children.
2. The legal nature of the centre in Lampedusa and the risk of
arbitrary detentions
The
choice to stop any transfers and to concentrate all the migrants in the CSPA of
Lampedusa effects a complete reversal as regards the functioning and the very
nature of the CSPA, which, instead, would be to carry out a first aid and
reception service for the people who have been rescued at sea, before
transferring them almost immediately to other reception centres found in
several Italian localities. The logic for this reasonable decision enacted over
the last few years until this sudden change in praxis is drawn from both
logistic and health service needs (to avoid improper situations of
concentration of people in the restricted space that is available on the island
from arising) and from the need to define the foreignersÕ legal position and to
adopt the measures concerning them in different structures, whose legal nature
and functions may be clearly defined by the norms that are in force.
In
fact, it is well known that the legal framework that is in force and regulates
rescue, assistance and early reception interventions for foreigners appears to
have shortcomings and gaps, and is liable to be interpreted in different ways
and be applied with discretion. In particular, the rights of foreign recipients
of assistance measures in so-called early reception centres, which are still
exclusively disciplined by Law 563/95 (referred to as the Apulia Law), are not
defined. Several reports have highlighted how, often, foreigners are
effectively held in the current early reception centres for considerably long
periods that may vary from a few days to weeks or months, without the legal
framework establishing the rights of foreigners who are there in a clear or
binding manner, and without that situation of de facto limitation of personal freedom
being subjected to any form of judicial scrutiny. It must be stressed that this
situation, which does not comply with Italian legislation in the field of
measures limiting freedom and could also be considered a violation of art. 5
point 1 of the European Convention on Human Rights (ECHR), has recently been
the subject of great concern expressed by the Group on arbitrary detention
established within the UN Human Rights Council that has also recalled the
Italian governmentÕs failure to redress a situation that has been highlighted
for some time[1].
The
use of the Lampedusa CSPA as a structure that only had first aid and transit
functions has not provided an adequate response to the legislative shortcomings
highlighted above. However, within the prospect outlined above, it must be
stressed that the deployment of this centre, as of 2006, as a place essentially
concerned with rescue work seemed a sign of the consciousness of the Italian
authorities with regards to the need to guarantee the respect of foreign
citizensÕ fundamental rights, while placing the processing of the different
administrative procedures elsewhere in the national territory. To now enact
the opposite choice of making the centre in Lampedusa a place for holding
people, gives rise to very serious concern as regards possible violations of
the norms of internal and international law about the legitimacy and
non-arbitrariness of the detention.
Hence,
one must wonder under what basis the migrants who have arrived in Lampedusa may
remain in the centre once the mere requirements of first aid and for the
organisation of transfers have been exhausted. Moreover, it is essential to
ascertain what procedures have been applied and their resultant legitimacy,
insofar as the possible adoption and execution of expulsion or refusal of entry
measures are concerned.
Finally,
we stress that the legal framework that is in force in the field of the
execution of expulsion and refusal of entry measures regulates the use
of structures that have this purpose within which the foreigner may be held,
and establishing the binding circumstances in which this holding may occur[2]
as well as envisaging a validation of the measure by the judicial authority. It
seems evident that the aforementioned procedures cannot possibly be applied
in a centre for first aid and reception such as the one in Lampedusa.
3. The effectiveness of access to
jurisdiction
Specific attention must be paid to the
possibility of the application of so-called Òdeferred refusal of entryÓ
envisaged by art. 10 third point of legislative decree D.Lgs 286/98. Like the
order for expulsion with accompaniment to the border, it constitutes a
measure that limits personal freedom falling within the scope of the
implementation of art. 13 of the Constitution and, as such, it cannot be
withdrawn from the control of the judicial authority[3].
In this matter, we observe that the reserve of jurisdiction provided for by
art. 13 of the Constitution does not envisage any sort of exception and, hence,
it must be deemed applicable even in so-called emergency situations.
It must also be noted
that the possibility of a judicial appeal against ÒdeferredÓ refusal of entry
ordered by the Questore [the head of police in a
given city or town] is a rather theoretical possibility that substantially
lacks any effectiveness. The formal measure issued by the Questore must be
impugned before the Tribunale Amministrativo Regionale (regional administrative
court, TAR, in the specific case of Lampedusa, the one in Palermo), and this turns out to be even
more difficult, if not entirely impossible, when the forced removal measures
are issued by administrative authorities in places, like Lampedusa itself, that
are rather distant from the places where the forced removal measures could
be impugned (it suffices to consider how difficult it is to undersign a power
of attorney for oneÕs habitual lawyer and the absence of court-appointed legal
representatives, apart from the lack of a competent judicial office detachment
operating on the island).
From the moment of their
entry into Italy, the people who have entered or are residing irregularly
–also including the migrants who have arrived irregularly in Lampedusa,
regardless of their age–, must have an adequate possibility to submit an appeal before a
judicial authority against a repatriation measure. We recall what is
provided for by art. 6 of the ECHR and by art. 47 of the European UnionÕs
Charter of Fundamental Rights, which guarantee the right to an effective remedy
and to a fair trial, apart from, naturally, the principle of judicial control
of detention, understood as any limitation of personal freedom, in accordance
with art. 5 of the ECHR.
Thus, several factors concur to outline a
situation that may effectively occur in Lampedusa, that is, that of a kind of
extra-territorial area where, for the purpose of countering irregular
immigration, it may be possible to provisionally ÒsuspendÓ the application of
the most important guarantees deriving from internal and international law.
Even on its own, the total geographical isolation of the island of
Lampedusa, the small size of its territory and the absence of competent
judicial offices effectively makes access to jurisdiction by foreign citizens
impossible even in the most positive of circumstances, in cases where they
may be allowed to leave the early reception centre.
It must be recalled that the European Court
of Human Rights itself has condemned the countries that had set up Òtransit
areasÓ in airports that were specifically meant for the removal of migrants[4].
In fact, according to the Court, the indisputable right for countries to
control the entry and residence of foreigners into their territory must be
exercised in compliance with the Convention and, thus, without violating any of
the principles asserted by the ECHR itself.
4. The uncertainty of identification
procedures
The adoption in the centre
of Lampedusa of refusal of entry and expulsion measures to be executed
immediately also raises relevant questions concerning procedures to identify
migrants and the certainty of the attribution of respective identities and
nationalities.[5] In fact, we deem
that the Italian authorities should supply further indications about what the
procedures that are already being adopted or that they seek to adopt in
Lampedusa are to identify migrants with certainty, something that often takes
place within a few hours, considering the general lack of identity documents
among the migrants.
5. The situation of unaccompanied foreign
minors
Those
(presumed) minors who, following only the radiological exam, have been
deemed to be over-age, are immediately sent to an identification and expulsion
centre (generally the CIE in Caltanissetta) in order to proceed to the
expulsion or even to be directly repatriated to their country of origin or the
one from which they came. It is not known whether in the implementation of
identification procedures enacted involving them there is, where possible, the
involvement of the consular authorities and within what time-frame this
happens. Moreover, neither is it known what effective possibilities of
appealing against such measures have been recognised to presumed minors who are
later declared adults following the radiological exam.
6. The prohibition of collective expulsions
We believe that, due
to the serious problems highlighted above, there is currently a serious risk in
Lampedusa of measures for collective repatriation being adopted by the
authorities. Art. 4 of Additional Protocol no. 4 to the European Convention
on Human Rights forbids the collective expulsion of foreigners, which, on the
basis of the case law of the European Court of Human Rights, take place on any
occasion when the individual circumstance of a person subjected to forced
removal measures is not taken into account, all the more so in cases in which their
certain identification is not carried out.
Art. 19 of the European Charter of
Fundamental Rights expressly forbids collective expulsions, and, in consistent
case law, the European Court of Human Rights has expressed itself likewise.
Hence, not only must the expulsion be ratified by the judicial authority on the
basis of elements that strictly pertain to the individual, but the context in
which such an expulsion is enacted must also be taken into account. The
prohibition of collective expulsion detailed in art. 4 of the 4th Additional
Protocol of the ECHR includes Òthose
expulsions adopted in relation to a group of foreigners without a reasonable
and objective examination being carried out for each of them as to the reasons
and defence each of them submits to the competent authorityÓ.
The Court has also deemed
that a series of individual measures adopted against people of the same
nationality who were in the same situation of irregular residence were
collective expulsions.[8]
We recall that in 2005, a
Resolution by the European Parliament condemned the collective expulsions from
Lampedusa to Libya. In 2004 and 2005, Italy never answered the request made by
the European Court of Human Rights, which sought to receive a copy of the
orders of forced removal from Lampedusa that have been issued repeatedly since
October 2004.
7. The safeguard of the right to asylum
At a first glance, the choice to
transitorily transfer the operativity of the Territorial Commission for the
recognition of the right of asylum of Trapani to Lampedusa, may appear not to
be different from analogous operative transfers of territorial commissions,
which have also taken place recently. However, the nature and seriousness of
this choice appears to be different, considering the overall context in which
it is enacted.
In fact, the current situation gives rise
to very serious concern, both with regards to the reception measures and to the
jurisdictional safeguard against negative decisions adopted by the Territorial
Commission of Trapani.
Firstly, due attention must be drawn to the
fact that the holding of asylum seekers in the centre for first aid and
reception of Lampedusa following the formal submission of an asylum application
while awaiting for it to undergo administrative examination, evidently
contravenes the legislation that is in force in the field of the reception
of asylum seekers, regulated by legislative decree D.Lgs 140/05 and by the
recent legislative decree D.Lgs 25/08. The reception of asylum seekers, beyond
the cases in which they are sent into the network of the Protection system for
asylum seekers and refugees, detailed in art. 1 sexies of art. 1 of Law 39/90
as modified by Law 189/02, may occur, in the binding cases detailed by art. 20
point 2 letters a, b and c of legislative decree D.Lgs 25/08, only within CARAs
(centri di accoglienza per richiedenti asilo, reception centres for asylum
seekers) or, in the cases regulated by art. 21 of the mentioned legislative
decree D.Lgs 25/08, in the CIEs (centri di identificazione ed espulsione,
centrs for identification and expulsion). Hence, it is not possible to use
the CSPA of Lampedusa as a reception centre for asylum seekers because it does
not fulfil the requirements envisaged by the law and no guarantee is provided
about the fact that the provision of necessary support, counselling and
guidance services would be ensured for asylum seekers, even as an emergency or
temporarily, with particular attention paid to situations involving the most
vulnerability.
Attention must also be drawn towards the
subjective circumstances of people who have just arrived after a trip that is
often very traumatic, and are subjected to a procedure whose outcome may
determine their future and personal safety, straight away; and this happens in
the same physical environment in which they have received first aid. Moreover,
people arriving in this situation cannot benefit from any assistance service,
even psychological, in relation to the traumatic experiences that they have
undergone. This particularly affects those who are most vulnerable. Furthermore,
the combination of these circumstances produces stress that does not allow the
interested party to face an interview with the commission in a relaxed manner.
Instead, in relation to jurisdictional
safeguard, it is a priority to recall that art. 39 of Directive 2005/85/EC, in
its point 1, establishes that ÒThe asylum seeker has a right to an effective
means of impugnation before a judge..Ó, while art. 13 of the ECHR decrees that Òevery
person whose rights and liberty recognised by this convention have been
violated, has right to an effective appeal before a national authority, even
when the violation has been committed by people acting in the exercise of their
official functionsÓ. In
the case of the right to asylum, the notion of effectiveness entails a
prohibition against exposing applicants to the risk of persecution they have
complained about, or to the risk of suffering serious harm, until a decision on
the matter has been adopted by a judicial authority[9].
The Italian legislation that is in force
envisages (D.Lgs 25/08, art. 35) that within 15 days (or, in other cases,
within 30 days) from the notification of the decision with which the
Territorial Commission rejects the asylum request, the interested party, unless
they want the procedure to expire, must file an appeal before the ordinary
monocratic court of the provincial capital of the district of the court of
appeal where the Territorial Committee has its offices. In the case of the
examination of applications carried out directly in Lampedusa, the competency
of the court of Palermo persists, in view of the fact that the Territorial
Committee of Trapani is only operating in Lampedusa on a provisional basis.
On this matter, it appears very serious
that there be a de facto impediment of access to jurisdiction to appeal against a refusal
of refugee status or humanitarian protection. In relation to what is provided
in art. 32 point 4 of legislative decree D.Lgs 25/08, which allows free access
to jurisdiction, it seems unrealistic to imagine that dozens or hundreds of
asylum seekers, entirely lacking in means, but free to circulate around the
island of Lampedusa, may, in the very brief period that is available to them,
materially initiate proceedings before the jurisdiction by contacting available
lawyers, either privately or through protection bodies, to safeguard their own
individual positions and submit the appeals in time for them to have any effect
before the court in Palermo, a city that is several hundred kilometres away
that can only be reached after a long trip in a ship followed by an overland
journey. In fact, this situation clearly contravenes the mentioned
legislation on the right to an effective judicial remedy.
8. Conclusions
Due to the serious situation that is
developing on the island of Lampedusa and to the serious and concrete risk of
widespread violations of the fundamental rights of migrants and especially
asylum seekers, minors and the people who are most vulnerable, the undersigned
associations ask the interior ministry and other competent authorities to do as
much as is within their powers to:
[1]
The UN experts, however, highlighted "significant human rights concerns
with regard to the centres in which migrants and asylum seekers are kept",
in particular with regard to the legal basis for the detention of those
deprived of their freedom. The Working Group noted that in 2006 the Ministry of
Interior had established a commission to study the matter, commonly referred to
as the "De Mistura Commission" after the UN official appointed to
head it. Its findings and recommendations remain to a large extent to be
implemented.
[2] When
it is not possible to execute the expulsion by escorting the foreigner to the
border or refusing them entry immediately because they must receive assistance,
additional checks must be carried out to establish their identity or
nationality, or they must obtain travel documents, or due to the lack of
available carriers or other suitable means of transport, the questore (head of police in a given city or
town) provides for the foreigner to be held for the time that is strictly
necessary in the closest centre for temporary stay and assistance (centro di
permanenza temporanea e assistenza, CPTA, re-named CIE –centre for
identification and expulsion- following the changes introduced by Law no.
186/2008, converted into law, with modifications, by law decree no. 151 of 2
October 2008) among those identified or established through a decree issued by
the interior ministry, in concertation with the ministers for social
solidarity, of the treasury, of the budget and economic planning (legislative
decree D.Lgs 286/98, art. 14 point 1).
[3]
See, Constitutional
Court - sentence no. 222 of 2004.
[4]
On this matter, it is interesting to recall the sentence of the European Court
of Human Rights, in the Amur/France case of 1996.
[5]
See, for example, the operation for the identification and repatriation of 35
presumed Egyptian citizens that took place between 30 and 31 December 2008.
[6] Also on this issue, there were specific recommendations, also in reference to the case of Lampedusa, dealt with in the report by the so-called De Mistura Commission.
[7]
ÒThe lower age must be presumed when the verification exam indicates a margin
of error. Finally, it is added that insofar as the results of the verifications
in question are not available, provisions concerning the protection of minors
must nonetheless be applied to the immigrantÓ.
[8]
For example, see the Conka/Belgio
case, whose sentence was issued on 5 May 2002. The Court
expressed itself with great clarity on this matter: "The Court reiterates its case-law
whereby collective expulsion, within the meaning of Article 4 of Protocol No.
4, is to be understood as any measure compelling aliens, as a group, to leave a
country, except where such a measure is taken on the basis of a reasonable and
objective examination of the particular case of each individual alien of the
group. That does not mean, however,
that where the latter condition is satisfied the background to the execution of
the expulsion orders plays no further role in determining whether there has
been compliance with Article 4 of Protocol No. 4". É. " in those circumstances and in view of the large
number of persons of the same origin who suffered the same fate as the
applicants, the Court considers that the
procedure followed does not enable it to eliminate all doubt that the expulsion
might have been collective".
[9]
The case law of the European Court of Human Rights in Strasbourg concerning the
application of art. 3 appears to have been cleary directed, for some time,
towards deeming that the notion of effectiveness envisaged by art. 13 must find
full application where, in the procedure, it is possible to note the possible
violation of art. 3 of the Convention itself, that is, if the appellant faces a
serious risk of suffering torture or inhuman and degrading treatment, should he
return to his country. Among the CourtÕs past case law on this issue, the Gebremedhin
[Gaberamadhien] v. France affair (Request no 25389/05) has assumed particular
importance due to the clarity with which the Court expressed itself.