28 March 2012
associations file a complaint with the European Commission against
Italy's collective expulsion of hundreds of migrants to Lybia
Ten NGOs working in the field of migrants' rights filed a complaint on 20 January 2005 with the president of the European Commission, Mr. Durao Barroso, in relation to the collective expulsion of over 1,000 would-be migrants in specially arranged flights to Lybia at the start of October 2004. The complaint has bben made by the Associazione di Studi Giuridici sull'Immigrazione (ASGI), ARCI, the Consorzio Italiano di Solidarietà (ICS), Association nationale d'assistance aux frontières pour les étrangers (ANAFE, France), Asociaciòn Andalucía Acoge (E), APDHA (E) Asociación Pro Derechos Humanos de Andalucía - Asociaciòn Sevilla Acoge (E) - Cimade (France), Federación de Asociaciones SOS Racismo del Estado Español (E) and Groupe d'information et de soutien des immigrés (GISTI, France). They have called on the Commission to sanction Italy for contravening international and European human rights law, and includes a detailed report of the events on the island of Lampedusa from 2 to 9 October, as well as presenting legal arguments to show that Italy contravened the expelled migrants' right to defence, the prohibition against inflicting inhuman and degrading treatment, the prohibition against carrying out collective expulsions, and the non-refoulement principle. Aspects such as the failure to allow potential asylum seekers to file asylum applications (UNHCR delegates were refused entry to the early reception centre where the migrants were detained until after most of them had already been expelled) and reports of human rights violations against migrants in Lybia were also submitted as part of the complaint, whose attached documentation also refers to legal precedents.
[unofficial Statewatch translation of the text of the complaint]
Subject: protest against the Italian government for a violation of European law
Mr. President Barroso,
We have taken the initiative of pointing out to you the following facts, which we consider justify the adoption of sanctions against the behaviour of the Italian government.
During the first week of October 2004, over 100 persons disembarked from precarious vessels on the island of Lampedusa in southern Sicily, thus increasing the number of aspiring migrants and asylum seekers already detained in the so-called "centro di prima accoglienza" (centre of initial reception), opened by the Italian authorities on the island.
On Friday 1 October, the Italian government ordered the expulsion of 90 of these foreigners on a special flight to Lybia. On Saturday 2 October, 3 new flights carried over 300 migrants to Tripoli.
On Sunday 3 October, two aeroplanes that were made available by Alitalia and two military aeroplanes made it possible to remove another 400 foreigners from Lampedusa.
On Thursday 7 October, 4 military aeroplanes send back the last "undesirables", who were seen by many witnesses as they were embarked on aeroplanes while they were hand-cuffed. The two first aeroplanes left at 14:00, the other two at 15:15. Overall, according to what the Interior Minister Giuseppe Pisanu declared in the Camera dei Deputati (Chamber of Deputies, the Italian Parliament) on 8 October, over one thousand foreigners were expelled from Italy to Lybia in only 4 days. It appears that these expulsions took place under the cover of an Agreement that was recently reached by the two Countries on the issue of the fight against illegal immigration, an Agreement that is not included in the list of readmission Agreements signed by Italy with third countries.
Several elements lead us to think that these expulsions were carried out under conditions that did not allow the respect of a certain number of legal principles provided for by international law.
During these persons' stay inside the "centro di prima accoglienza" in Lampedusa, representatives of UNHCR were denied access for several days to a place in which hundreds of men, women and children were detained, in spite of the representatives' repeated requests [for access] and of the legitimacy of their intervention due to the presence of potential asylum seekers among the detainees. It was only after the majority of them were already on their way to Lybia that the person in charge of the centre allowed the representatives from the UN access. On Thursday 7 October, the member of the regional council Lillo Miccichè (Greens), who had asked to be allowed to visit the centre at 13:00, only received a reply at 17:00, when several expulsions had already been carried out. In response to the attempt by this person to enter the aeroport to delay the departure of the expelled foreigners, [members of] the forces of law and order violently stopped him, pushing him to the ground. Simultaneously, and only after the end of the expulsion operations, two Italian senators, accompanied by exponents of the "Rete antirazzista siciliana" (Sicilian anti-racist network), were able to obtain the authorisation to visit the centre, which was almost empty by this point. Apart from the deplorable material conditions in which the two senators found the detained foreigners who they met in the centre, they were able to ascertain that they had not received any information, neither of the reasons for which they were being held, nor about the possibility of having access to the procedure for seeking asylum. The foreigners who were present in the centre, were kept in hygienic, health and environmental conditions that were not very dignified, and lacking any contact with the outside world, other than by telephone. No specific measures were envisaged for the minors who were present, and many of them were classified as adults following some summary assessments, when they were not inexistent, concerning their age. The visitors all received testimonies that agreed on the fact that, neither with regards to the detention, nor to the expulsion of the "undesirables", the individual circumstances of persons were taken into account, but rather, that the decision was taken on the basis of the criteria that "as many as arrive will be expelled", depriving the persons [who were the object of the decisions] of any right to defence, both with regards to access to an interpreter and a lawyer, or to the possibility of effectively appealing against their expulsion.
1. Inhuman and degrading treatment
The statements collected by the few witnesses who were able to have access to the centre during, or immediately following the return operations, are sufficiently in agreement and precise to allow us to believe that the conditions under which the foreigners were detained during the period that is the object of this complaint, fall under the definition of "inhuman and degrading treatment" forbidden by article 4 of the European Charter of fundamental rights, and by article 3 of the European Convention for the protection of human rights and fundamental freedoms. In fact, the following circumstances fall under these kinds of treatment: overcrowding (over 1,000 people in a centre that has a capacity to receive under 200 people), the poor hygienic conditions, an infrastructure that is not suited to the minimum requirements of daily life (as the people were obliged to sleep on the floor, in the open air, without sheets or covers), the use of coercitive methods to force people to embark on aeroplanes (plastic handcuffs were used), to which can be added the impossibility of communicating with the outside world (both due to language problems and to the absence of a telephone booth), the uncertainty that is related to the absence of information about the fate of the detained persons, the fear of expulsion, etc All of these elements emerge from the reports made by the people who visited the centre in Lampedusa on 7, 8 and 9 October.
2. Collective expulsions
Article 4 of the 4th Protocol of the European Charter of Human Rights and article II-19-1 of the Charter of Fundamental Rights do not allow collective expulsions. According to the European Court of Human Rights (Andric vs. Sweden, case n.45917/99, Conka vs. Belgium, case n.51564/99, see attachment 2), collective expulsions are understood as "any measure by which foreigners are forced, as a result of their belonging to a group, to leave a country, apart from cases in which this measure is adopted following and based on a reasonable and objective assessment of the specific situation of each of the foreigners who compose the group". Now, even though the Italian authorities have repeatedly claimed that they proceeded to an individual assessment of the situation of each of the foreigners received during the period in question in the centre in Lampedusa and that each of them was identified, the circumstances in which they stayed in the centre, as they were reported in their testimonies, and particularly the extremely fast manner in which the expulsion of a large number of migrants was organised, make this claim difficult to believe. On the one hand the centre in Lampedusa, an early reception centre for persons who have just disembarked on the island, is not normally set out or equipped to undertake the identification process. Furthermore, the foreigners were informed from the moment when they arrived that the identification would not take place on the spot, but rather in the other centres to which they would be transferred. On the other hand, it is difficult to understand how it would have been possible for the Italian authorities to proceed to carry out an individual, reasonable and objective assessment of the cases and the situation of 1,000 persons detained on the island of Lampedusa, in only a few days or even in a few hours. Several Italian associations, as well as members of the Italian parliament, officially asked the Italian government questions at the time of the events, in order to find out the way in which the personal situation of the expelled persons was assessed, as well as requesting a list of these persons, that should include their nationality and their full civil status. No answer has been received to date.
From the testimonies, it emerges that the main means of identification was in fact limited to a very hurried examination of the foreigners, carried out on the basis of their presumed nationality ("by sight", so to speak) and of the details provided by two persons who were designed as interpreters. From this reconstruction, it would emerge that the majority of the people who were identified as being "of sub-Saharan origins" were transferred to Sicilian reception centres, while the others, largely identified as being "Egyptian", were held in Lampedusa awaiting to be embarked [on aeroplanes destined] to Lybia. Furthermore, the latter group was removed from the Italian territory in groups of at least 100 persons per aeroplane, because between 1 and 7 October, over 1,000 people were expelled. The air transit put into place with Lybia during those days thus allowed the expulsion "by groups" of foreigners.
3. The non-refoulement principle
This extremely summary method of "identification" of the foreigners who arrived in Lampedusa has direct consequences on the respect of the non-refoulement principle as it is envisaged by the 1951 Geneva Convention on refugees and by article 33 of the European treaty: "none of the signatory States will expel or turn away, in any manner, a refugee towards the border of a territory where his life or freedom are threatened as a result of their race, religion, nationality, of their belonging to a social group, or of their political opinions". This non-refoulement principle has been repeatedly re-affirmed by the European Union as a cornerstone of protection of refugees, in the European Charter of Fundamental Rights, at the time of the Tampere European Council, and in the text of a Communication made by the European Commission on 21 March 2001, alike. This principle, although it does not imply obligations for states on the acceptance of asylum applications, nonetheless imposes the obligation to proceed to an individual, reasonable and objective assessment of the applications. As has already been shown (see point 2), it has been manifestly impossible to carry out this assessment. It follows that people who could have been able to legitimately request the protection that Italy, having ratified the Geneva Convention and its subsequent protocols, has committed itself to providing, may have been expelled without the [asylum] application that they may have possibly filed having been taken into account. It would thus follow that the fact that the UNHCR representatives who were present on the scene were unable to have access to the centre, until after the departure of the majority of the potential asylum seekers (see above), constitutes an aggravating circumstance.
4. Removal to a country that does not offer the minimum guarantees for the protection of persons
In accordance with article II-19-2 of the European Charter of fundamental rights, "nobody can be turned away, expelled or extradited to a State where there is a serious risk that they may be subjected to the death penalty, torture or to inhuman or degrading treatment". Choosing to collectively expel foreigners to Lybia, a country that has not signed the 1951 Geneva Convention on refugees, Italy has taken the risk of not having respected the legal precepts contained in these provisions, in the European Convention on human rights and fundamental freedoms, as well as in international texts on the defence of human rights, taken as a whole. In fact, Lybia has repeatedly been singled out as having been responsible for serious violations of human rights: this is what is reported in the Amnesty International report "Time to make human rights a reality" (AI MDE 19/02/2043). Furthermore, the testimonies agree in stating that Lybia employs the practice of rounding up migrants (in French, "rafles de migrants" in the original) who are found in its territory to enclose them in military detention camps that are particularly inhumane. The conditions of imprisonment are clearly unbearable, a large number of instances of ill-treatment of all kinds is reported, and attempts to escape or rebel are resolved with summary executions. In its report, Amnesty International gives an account of serious human rights violations by the Lybian State particularly with regards to migrants and asylum seekers, who are the victims of arbitrary detentions, of inexistent or unfair trials, of killings, of disappearances or torture in the detention centres. Evidence of this can be found in the testimonies of hundreds of Burkinabé, who were recently expelled towards their country of origin, who assure that they were detained in inhumane conditions which included the failure to provide water, food and medical care. Several Eritrean and Nigerian migrants reported similar facts, after they had been deprived of their documents and possessions, and expelled to their respective countries of origin. Recently, the authorities have refused the international organisation Human Rights Watch authorisation for its representatives to enter Lybia to undertake a visit that had been planned for a long time, during which it intended to conduct research concerning the treatment reserved to migrants and asylum seekers in that country. According to HRW, "asylum seekers and migrants who live or are in transit in Lybia, particularly if they come from sub-Saharan Africa, suffer violence by the police, arbitrary detentions and deplorable detention conditions. It is frequent for people to be turned away or expelled towards countries like Somalia or Eritrea, where they run serious risks." (HRW press release, 7 December 2004).
Expelling, without any concern, several hundred people to Lybia, among whom there may have been people requiring international protection, Italy has taken on a joint responsibility for the violation of their fundamental rights which these people may suffer.
Considering all of the above, the collective expulsions carried out by the Italian government at the start of the month of October undoubtedly feature the characteristics of a serious violation of human rights and of asylum rights, without allowing the people who suffered them to be in a position to exercise the right of appeal that may have been applicable, particularly before the European Court of Human Rights.
The Member States and the EU have repeatedly declared their adherence to the respect for freedom and fundamental rights, particularly asylum rights. Several instruments such as the 1951 Geneva Convention, the 1950 European Convention for the safeguard of human rights and fundamental freedoms as well as the European Charter of Fundamental Rights of 2000 bear witness to this. Today, although the EU has repeatedly stated its desire to create a European space of "security and justice", it is legitimate to ask oneself what security and justice the migrants and asylum seekers who arrived in Lampedusa at the start of October 2004 have enjoyed.
As associations that are involved in the protection of human rights and the promotion of the principle of equality, we cannot fail to react when faced with the injustices that have been carried out by the Italian government in relation to its international and European obligations.
As the guarantor of Treaties, the Commission oversees, alongside the Court of Justice of the European Communities, the respect for European Community rights in all the Member States. With the removal, between 2 and 9 October, of over 1,000 migrants and potential asylum seekers in the framework of collective expulsions to Lybia, the Italian authorities have become guilty of contravening the right to asylum as it is recognised by the Amsterdam Treaty, as well as by the European Convention of human rights and of fundamental freedoms, whose principles the European Union has committed to respect, and of the European Charter of fundamental rights, which has been integrated into the Constitutional Treaty signed on 29 October 2004, whose principles are references for the European Court of Justice (see attachment 1).
In name of the international and European commitments taken by the EU Member States, we ask you to condemn Italy for the following breaches:
- Violation of the right to defence and of the principle of
hearing the different parties: considering the time that passed
between the arrival of the migrants and their removal, it can
be stated that these people (over 1,000 in total) have not had
their cases examined individually, they have not been able to
have access to the assistance of a lawyer and even less to an
interpreter. Furthermore, the decision to remove them that was
taken by the Italian government has not allowed any possibility
for the people concerned to file an appeal.
- Violation of the prohibition of inflicting inhuman and degrading treatment, as is provided for in article 4 of the European Charter of fundamental rights and article 3 of the European Convention for the protection of human rights and fundamental freedoms.
- Violation of the prohibition of carrying out collective expulsions as is provided for in article 4 of the 4th Protocol of the European Convention for the protection of human rights and fundamental freedoms, and article 19 of the European Charter of fundamental rights. Through its superficial assessment of the cases, the Italian government has proceeded to carry out collective expulsions which are forbidden by the body of international legislation on the subject.
- Violation of the non-refoulement principle as is prescribed in article 33 of the Single European Act of 1986. This principle imposes the individual assessment of the cases, and forbids the removal of the persons concerned to countries where "a serious risk against the physical integrity of these people" exists (it is referred to in article 19/2 of the European Charter).
Our associations ask the European Commission to act, on the one hand, to ensure that no EU Member State may be able to fail to fulfil its commitments and obligations in the fields of immigration and asylum, and on the other, to ensure that collective removals and expulsions are definitively removed from the EU's policies on migration.
For these reasons, we urge the Commission to involve itself in this case, in particular, by opening offence proceedings in order to ascertain the breach of Community law committed by Italy, and to recognise Italy's responsibility for the damages suffered by the expelled [persons].
We believe that fundamental rights such as the right to defence, protection against inhuman and degrading treatment, the prohibition of collective expulsions and the principle of the non-refoulement of refugees are an integral part of Community law, and that the absence of an intervention by the Commission would be interpreted as a lack of responsibility with regards to the defence of these principles.
[The original text (in Italian), including the attached documents (mostly in French, a few in English), is available on the ARCI website at: http://www.arci.it/Scripts/magazzino/notiziamagazzino.exe?Id=2688 ]
Press release of Jan 25th, 2005: http://www.gisti.org/doc/actions/2005/italie/
English version of press release (pdf)
French text of the complaint: http://www.gisti.org/doc/actions/2005/italie/plainte20-01-2005.pdf
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