The large-scale arrival of mixed migratory flows on Italian shores
Reply to Recommendation
| Doc. 13681
| 28 January 2015
- Author(s):
- Committee of Ministers
- Origin
- Adopted at the 1217th meeting of
the Ministers’ Deputies (21 January 2015). 2015 - First part-session
- Reply to Recommendation
- : Recommendation 2047
(2014)
1. The Committee of Ministers takes note
of Parliamentary Assembly
Recommendation
2047 (2014) on “The large-scale arrival of mixed migratory
flows on Italian shores”, which it has examined carefully. It has transmitted
it to the Steering Committee for Human Rights (CDDH) and to the
European Committee on Crime Problems (CDPC) for information and
possible comments. The Committee refers to the comments made in
its reply to Parliamentary Assembly
Recommendation 2046 (2014) on “The
“left-to-die boat”: actions and reactions” in relation to the tragic
incidents in the Mediterranean Sea.
2. The Committee has considered the Assembly’s request that it
launch a reflection on how best to introduce a new international
crime to cover the situation when a person receives a financial
benefit, directly or indirectly, for transporting people in a vessel
which is unsafe for the purpose and which may endanger life or cause
death or injury at sea (paragraph 4.1 of the recommendation). It
notes that the crimes mentioned in this paragraph are likely already
to be considered to be serious crimes under the legislation of the
vast majority of member States of the Council of Europe. Moreover,
the European Union has established a comprehensive set of rules
in this regard. The Committee furthermore draws attention to an
already existing international instrument in this field: the UN
Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing
the United Nations Convention against Transnational Crime. This
instrument explicitly calls on States Parties to criminalise the
smuggling of migrants and ancillary acts, when these are committed
with intent and with the aim of obtaining, directly or indirectly,
financial or material gain. Rather than duplicating international
efforts, the Committee of Ministers calls on all States not having
ratified the UN Protocol to do so swiftly, and to enhance international
co-operation in its implementation.
3. Concerning paragraphs 4.2 and 4.3 of the Assembly’s recommendation,
the Committee of Ministers observes the well-established requirements
of international law, i.e. the principle of non-refoulement, and
in particular, the jurisprudence of the European Court of Human
Rights. It draws attention to the Court’s judgment in the case of Hirsi Jamaa and Others v. Italy (2012),
to which the Assembly’s recommendation refers. In Hirsi Jamaa, the Court held that
while Contracting States are free to devise their own immigration
policies, this right is circumscribed by Article 3 (freedom against
torture or inhuman or degrading treatment) of the European Convention
on Human Rights, where the removal of a person would expose him/her
to a real risk of facing such treatment in the receiving country,
irrespective of whether this person was intercepted outside of territorial waters.
The Court reiterated the need for an assessment of individual circumstances
(prohibition of collective expulsions of aliens, Article 4 of Protocol
No. 4 to the Convention) and access to an effective remedy (Article 13 of
the Convention). Given the foregoing, the Committee of Ministers
considers that any arrangements for automatically returning people
to a non-EU country, as suggested in the recommendation, would risk contravening
the ECHR’s requirements.
4. The need to address possible issues encountered in the implementation
of the Hirsi Jamaa case is referred to in both Parliamentary Assembly
Recommendations 2046 (2014) and
2047 (2014), albeit
in diverging ways. The Committee of Ministers takes note of the
Assembly’s request in the latter Recommendation to “make this judgment
compatible” with Council of Europe member States’ right to draw
up their own immigration policies (paragraph 4 of the recommendation).
In this context, it refers to the Court’s position quoted above, that
the Contracting States’ freedom to devise their own immigration
policies does not relieve them from honouring their undertakings
under the Convention, and to comply with the Court’s judgments in
any specific case. It is indeed for the respondent States to find,
under the supervision of the Committee of Ministers, the most appropriate
ways of complying with the judgments, and to adapt their immigration
policies accordingly.
5. Finally, the Committee of Ministers takes note of the Assembly’s
request to consider the necessity of an extensive review of the
“Dublin Regulation” and its implementation. Although the Council
of Europe’s activities, including the Court’s case law, have concrete
repercussions on the manner in which the Regulation is applied, it
is not for the Council of Europe to review an EU Regulation.