Recent developments

European Court of Human Rights, case Safi & others v. Greece, Application No. 5418/15, judgment of 7 July 2022

The European Court of Human Rights (ECtHR) delivered the final judgment on the case Safi & others v. Greece. The decision concluded the judicial process that started in 2014 before various Greek courts following the search and rescue (SAR) operation of a Turkish-flagged fishing boat by the Hellenic Coast Guard. The fishing boat carried 27 migrants, 11 of which died during the SAR operation. The Greek authorities started investigations to clarify the circumstances of the shipwreck and drowning of the relatives of the applicants before the ECtHR. Investigations were also ordered into the alleged inhuman treatment of the survivors, who were subjected to strip-searches once landed.

The applicants submitted an application before the European Court of Human Rights claiming that Greek authorities violated Articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), R, respectively in relation to the investigation, the circumstances of the shipwreck, and the body searches.

Firstly, the Court considered the procedural dimension of Art. 2 ECHR to assess whether the investigations ordered into the operation and death of some migrants could constitute an effective legal instrument to establish the facts, hold those responsible to account, and provide adequate reparation. The Court found Greece in violation of the Convention, because the domestic proceedings failed to perform an effective investigation and to identify and sanction those responsible.

Secondly, the Court assessed the SAR operation at sea, whose obligation is enshrined in art. 98 of the United Nations Convention on the Law of the Sea (UNCLOS), in relation to the substantive dimension of art. 2 ECHR. Notably, the ECtHR focused on the obligation of the Contracting Party to take all necessary measures to protect the lives of individuals under its jurisdiction. The Court recognised that authorities enjoy a certain degree of discretion in taking operational decisions, but it ruled that this discretion should nevertheless be inspired by the overriding effort to protect the migrants’ right to life. The ECtHR clarified that the obligation to rescue shipwrecked migrants is not an obligation of result, but one of means, thus national authorities are required to exercise due diligence, taking into account the specific circumstances of the case. On the conducts of the Hellenic Costal Guard, the Court found unjustified omissions and delays and concluded that they failed to take all the reasonable measures that could be expected from them in order to provide the required level of protection.

Thirdly, the ECtHR assessed whether strip-searches on migrants had constituted inhuman treatment, in violation of the prohibition under Art. 3 ECHR. The Court found that the conduct of Greek authorities fell within the definition of “inhuman treatment” because of the extremely vulnerable situation of the applicants, who suffered from a degree of humiliation exceeding that related to a lawful measure of deprivation of liberty.

[Antonio Attolico]

Sea Watch is a NGO registered in Berlin. It performs search and rescue operations (SAR operations) in the Mediterranean Sea, using ships in respect of which it is both the owner and the operator. Those ships include Sea Watch 3 and Sea Watch 4, which fly the German flag and which have been certified as cargo ships. During the summer of 2020, those two ships carried out rescue operations and disembarked the persons rescued at sea in the ports of Palermo and Porto Empedocle. The harbour master’s offices of those ports performed inspections on the Sea Watch 3 and Sea Watch 4 since the two ships were certified as cargo ships (i.e, they lack the certificate in respect of SAR operations) and had taken persons on board in numbers out of proportion to their carrying capacity. The harbour master’s offices also concluded that there were technical and operational deficiencies which were clearly hazardous to safety, health or environment and sufficiently serious to warrant the detention of those ships.

Sea Watch brough two actions before the Regional Administrative Court of Sicily, asking for the annulment of the detention orders, the inspection reports which preceded those orders, and “any other preceding, related or subsequent act”. Sea Watch argued that the harbour master’s offices had exceeded the powers of the authorities of the port State, as derived from Directive 2009/16, interpreted in the light of international law. The Regional Administrative Court has referred questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling asking for clarifications on the extent of the port State’ powers of control and detention over ships operated by NGOs.

The CJEU first declared the applicability of Directive 2009/16/CE to “any ship which […] is located in a port, in an anchorage or in waters within the jurisdiction of a Member State and is flying the flag of another Member State or of a non-Member State” (para. 77), including ships operated by NGOs which perform non-commercial SAR operations, notwithstanding their classification as cargo ships in the State whose flag they fly (para. 74 e 80).

Directive 2009/16/CE is designed, among other purposes, to increase “compliance with international […] legislation on maritime safety, maritime security, protection of the marine environment and onboard living and working conditions of ships of all flags” (Art. 1, lit. a)). The Court underlines that the Directive should be interpreted in light of its object and purpose, by taking into account the UNCLOS, to which the EU is a party, and the SOLAS Convention (listed in Art. 2) (para. 89, 93-94). The UNCLOS lays down the duty to render assistance to persons in danger or distress at sea (Art. 98). The SOLAS Convention supplements such provision by clarifying that persons who are on board a ship in consequence of a SAR operations must not be taken into account for the purpose of ascertaining the application to that ship of any provisions on safety at sea (Art. IV, lit. b)). This provision also applies to ships operated by NGOs such as Sea Watch.

Thus, transporting persons in numbers which are out of all proportion to their capacity in that regard as derived from their classification and certification, and regardless of any other circumstance, cannot be regarded as a legitimate reason for the port State to undertake an additional inspection.  Such an interpretation of the powers conferred by Directive 2009/16/CE would be contrary to the provisions of UNCLOS, inasmuch as “it would be such as to hamper the effective implementation of the duty to render assistance at sea laid down in Article 98”. It would also be incompatible with Art. IV(b) of the SOLAS Convention (para. 117-118).

The port State may decide to take an additional inspection on ships operated by NGOs which carry out SAR operations and which are located in a port or in waters falling within the jurisdiction of a Member State after having entered those waters and after having completed all operations relating to the disembarking of rescued persons. The decision to undertake an additional inspection must be reasoned and, as to the substance, justified both in law and in fact – i.e., the decision must be based “on serious indications capable of establishing that there is a danger to health, safety, on-board working conditions or the environment, in view of the relevant provisions of international and EU law, having regard to the conditions under which the operation in question took place” (para. 119-120). This interpretation is in line with the provisions of the SOLAS Convention (para. 122-124).

The CGUE further clarified that, in the context of a more detailed inspection (Art. 13 Directive 2009/16/CE), the port State may take into account, among other factors, “ the activities for which the ship concerned is used in practice, any difference between those activities and the activities in respect of which that ship was certified and equipped, how frequently those activities are carried out and the consequences of those activities as regards the conditions under which the ship operates in view, inter alia, of the equipment on board” (para. 134). Thus, the port State may take into account that certain ships, which had been classified and certified as cargo ships by the flag State, are used for SAR operations. Nonetheless, the port State is under the obligation “to report the detailed legal and factual elements capable of establishing the reasons why that fact gives rise, on its own or together with other elements, to a danger to health, safety, on-board working conditions or the environment” and, consequently, justify a more detailed inspection (para 135). This interpretation is consistent with the rules of international law governing the division of powers between that State and the flag State (para. 137). On the contrary, a request by the port State demanding that ships subject to a more detailed inspection “hold certificates other than those with which they were issued by the flag State or that they comply with all the requirements applicable to ships covered by another classification” would contrast with both Directive 2009/16/CE and the relevant rules of international law: such a request would interfere in the way in which the flag State has exercised its powers in the area of conferring its nationality on ships, as well as the area of classifying and certifying those ships (para. 138).

The Court also addressed the power of port State to adopt corrective measures to rectify the deficiencies revealed by an inspection, alongside its power to detain a ship whose deficiencies are “clearly hazardous to safety, health or the environment” (Art. 19 of the Directive). The CJEU clarified that the port State may impose corrective measures relating to safety, pollution prevention and on-board living and working conditions, provided that those corrective measures are suitable and necessary to correct such deficiencies, and proportionate to that end (para. 142-143, 152-153). On the second issue, the Court affirmed that the port State may not make the non-detention of those ships, or the lifting of such a detention, subject to the condition that those ships hold certificates appropriate to those activities that they comply with all the requirements applicable to ships covered by another classification – in line with the Court’s determination on the regime applicable to more detailed inspections (para. 150-151).

Lastly, the CJEU underlined the principle of sincere cooperation between the port State and the flag State, which result from both Directive 2009/16/CE and the pertinent rules of international law. In the area of corrective measures, this principle applies regardless of whether the flag State is another Member State or a third country (para. 154-155). With regard to detention, Art. 4(4) TEU enshrines the principle of sincere cooperation upon EU Member States, which must consult and assist each other, in full mutual respect, in the exercise of their respective powers (para. 156-157).

[Giulia Ciliberto]

Press release: https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-08/cp220138en.pdf

Judgment: InfoCuria Giurisprudenza

The Italian Court of Cassation has recently published a report on the forms of international protection that Ukrainian citizens and other people fleeing Ukraine may be entitled to, in a context that “looks set to become Europe’s largest refugee crisis this century” (UNHCR).

The study begins outlining the legal framework of temporary protection under primary and secondary EU law (notably, Directive 2001/55/EC) – which also governs the access to the asylum procedure in the context of of temporary protection –, and its implementation in the Italian system (Legislative Decree No. 85, 7 April 2003). The report then describes the steps introducing temporary protection in the aftermath of the launch of the Russian large-scale invasion of Ukraine, with specific reference to the Council decision (Council Implementing Decision (EU) 2022/382 of 4 March 2022) and its domestic regulation by Decree of the President of the Council of Minister, 28 March 2022.

Beside sketching the nature and content of temporary protection, and the relationship between the latter and other forms of international and complementary protection, the document recall the introduction of the notion of “Safe Country of Origin” in the Italian legal system (Law No. 132, 1 December 2018) in line with the so-called Procedure Directive (Directive 2013/32/EU). It subsequently gives notice of the temporary suspension of Ukraine from the list of safe countries of origin (Decree of the Ministry of Foreign Affairs and International Cooperation, 9 March 2022) and highlights that the relevant legal framework only governs the possibility to revise the list of safe countries of origin and does not mention the possibility to temporarily suspend a country from the list.

The report also takes into account two specific situations arising from the Russian invasion of Ukraine and in which national authorities may recognize the refugee status or the subsidiary protection. As for the refugee status, the Court of Cassation focused on asylum application based on compulsory military recruitment and service, alongside other duties established under recently introduced Ukrainian rules imposing the “general mobilization of the population” in the wake of the Russian offensive. In this regard, the Court of Cassation recalls its own case-law on the requirements to recognize the refugee status when the asylum seeker invokes conscientious objection to perform military services in his/her country of origin. In these cases, the competent authority should duly consider the existence of criminal sanctions against those opposing to serve in the armed forces – which are also provided for under the Ukrainian criminal code. Concerning subsidiary protection, the Court of Cassation simply sums up its main features in light of the “probable increase of the number of cases in which national authorities will recognize such form of protection” due to the breadth and characteristics of the conflict in Ukraine, which may constitute “indiscriminate violence” in a context of an armed conflict.

[Giulia Ciliberto]

The Corte di Cassazione said the final word on the criminal proceedings concerning the 2018 events on the Vos Thalassa ship. The episode and its procedural consequences are a “spin-off” of the well-known “Diciotti” case, which led the Italian judiciary to charge the former Italian Minister for Internal Affairs (Matteo Salvini) with kidnapping, aggravated by his role as public official and the involvement of minors among the alleged victims.

Following the rescue of 67 migrants in international waters, the Vos Thalassa, after first heading towards Italy, had turned to Libyan coasts. Some of the migrants onboard had noted the change of route and had threatened the crew, who had then adjusted the route to head again to Italy. During the sail, the rescued migrants were transferred on the “Diciotti” ship, a vessel of the Italian Cost Guard. Once reached the Catania harbour, the “Diciotti” vessel had received the order not to disembark the migrants onboard who, ultimately, had landed five days after the arrival at the port.

Two of the rescued migrants were charged with violence and threat of violence against public officials (Article 336 Italian Criminal Code) and with resisting authority (Article 337 Italian Criminal Code), alongside the violation of Italian rules against illegal migration (Article 12(2) and (3-bis), legislative decree  286/1998, so-called Consolidated Text on Migration). The Tribunale of Trapani (GIP, judgment of 23 May 2019, pub. 3 June 2019) concluded that the two migrants committed the relevant conducts, but that legitimate defense, as a circumstance precluding wrongfulness under art. 52 of the Italian Criminal Code, applied to the their case. The Tribunale of Trapani therefore acquitted the two migrants because their conduct did not constitute the crime they were charged with (i fatti non costituiscono reato).

The Corte di Appello di Palermo subsequently overruled the judgment of the Tribunale of Trapani (Sez. IV Penale, judgment No. 1525/2020 of 3 June 2020, pub. 24 June 2020) and convicted the two migrants. The Corte di Cassazione (Sez. VI Penale, judgment No. 15869/22 of 16 December 2021, pub. 26 April 2022) set aside the judgment of the Corte di Appello di Palermo. The Corte di Cassazione did not refer the case to a lower court (annullamento senza rinvio) and acquitted the two migrants.

The reasoning of the Corte di Cassazione was largely grounded in the international law of the sea. Notably, it referred to the main treaties concerning search and rescue at sea – the SAR, UNCLOS and SOLAS Conventions – and to a soft-law instrument – the IMO Guidelines. The Corte di Cassazione also outlined the evolution of the principle of non-refoulement, from a fundamental safeguard against removal of asylums seekers and refugees (which was subjected to limitations) to a jus cogens provision under international human rights law, which allows no restriction or derogation and to which everyone is entitled to, irrespective one’s own status. The Corte di Cassazione delineated the scope and nature of the principle of non-refoulement by recalling human rights treaties and the interpretative practice of the corresponding monitoring judicial or quasi-judicial bodies, including the European Court of Human Rights and the UN Human Rights Committee.

The Corte di Cassazione also echoed some of the findings of the Tribunale di Trapani: at the time of the contested events, Libya was not a safe country, which prohibited the removal of migrants there (in its words, this situation was “well-known, documented, proved, and based on concrete factual evidence”). Moreover, the Corte reiterated that the existence of a “real and actual threat of undue harm” – namely, the risk of being subjected to torture, inhuman and degrading treatment, harm to physical and sexual integrity – fulfilled the requirements of necessity and proportionality underpinning the legitimate defense, as a circumstance precluding wrongfulness, due to the absence of alternative conducts to avoid the risk (necessity) and the fundamental nature of the rights at risk (proportionality).

Following the proposal of the European Commission, on 4 March 2022 the Council of the European Union adopted an implementing decision establishing the existence of a mass influx of displaced persons from Ukraine, which has the effect of introducing temporary protection for an initial period of one year (which may be extended at a later stage). This measure is enshrined in the Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof.

The Council Implementing Decision marked the first introduction of the temporary protection pursuant to the Directive 2001/55/EC, which pursues the specific aim to allow the management of emergency situation of mass influxes of individual from non-EU Countries while, at the same time, avoiding an excessive pressure on the national asylum systems of EU member States.

Click here to download the Council Implementing Decision:

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32022D0382&from=EN

The exclusion of non-EU nationals who are no long-term residents from benefitting from the minimum income guaranteed by the state (Reddito di cittadinanza) does not violate the prohibition of discrimination and the principle of equality. The reddito di cittadinanza is not only a strategy for poverty alleviation, but it is also an active labour market measure and pursues aims of social integration. Since it has a long-term time horizon, the status of long-term residents is a prerequisite linked to the rationale of the measure.

Click here to download the judgment (Italian):

https://www.cortecostituzionale.it/actionSchedaPronuncia.do?param_ecli=ECLI:IT:COST:2022:19