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ELENA Weekly Legal Update (EWLU)

8 November 2024
 

Summary


Council of Europe

Council of Europe


ECtHR communicated case: Conditions of detention and access to medical care in Poland

 
On 8 October 2024, the ECtHR communicated the case of M.A.E. v. Poland (Application no. 7463/23). The case concerns the detention of an Egyptian national, M.A.E., in the Lesznowola Guarded Centre for Aliens following his entry into Poland without a visa and his subsequent application for asylum. M.A.E. complained of poor detention conditions under Article 3 of the European Convention on Human Rights (‘ECHR’) as well as of violations of Article 5(1)(f) (arbitrary detention) and Article 5(4) (lack of effective means to challenge his detention).

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ECtHR communicated case: Alleged pushbacks and detention conditions of asylum seekers from Greece to Türkiye

 
On 8 October 2024, the ECtHR communicated the cases of A.A.N. and Others v. Greece and 7 other applications (Application no. 38203/20) concerning multiple applicants alleging that the Greek authorities returned them from Greece to Türkiye without due process. The applicants report being detained in an unofficial facility for two days before being returned on 23 March 2020 from the island of Symi. One applicant claims he was subsequently returned from Türkiye to Syria.
 
The applicants argue under Article 2 in conjunction with Article 13 of the European Convention on Human Rights (‘ECHR’) that these actions endangered their lives and physical safety, without an effective remedy for their complaints. Under Article 3, they allege mistreatment by Greek authorities, both in detention and during their return. They also contend that their return to Türkiye breached Article 3 due to the lack of access to asylum in Greece and the risk of further expulsion to their countries of origin from Türkiye. Additionally, they allege unlawful deprivation of liberty under Article 5(1), (2), and (4), claiming that Greek authorities did not individually assess the vulnerability of some applicants based on age and health.

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Commissioner for Human Rights: Commissioner O’Flaherty intervened in three cases concerning summary returns of asylum seekers from Lithuania, Latvia and Poland to Belarus

 
Council of Europe Commissioner Michael O'Flaherty intervened in three European Court of Human Rights cases on summary returns of asylum applicants from Lithuania, Latvia, and Poland to Belarus. His written observations stress concerns over potential collective expulsions, lack of individual assessments, and the risk of inhuman treatment due to Belarus’ actions. The interventions focus on the compliance of migration management with human rights obligations, especially under Article 3 European Convention on Human Rights (‘ECHR’) and under Articles 4 of Protocol No. 4 to the Convention (‘Protocol No. 4’).
 
In his intervention in the C.O.C.G. and Others v. Lithuania case, Commissioner O'Flaherty addressed the summary returns at the Lithuania-Belarus border and emphasized concerns over collective expulsions and limited procedural safeguards for asylum applicants, which violate Article 4 of Protocol No. 4, including in the context of instrumentalization of migration by third states. He further highlighted Lithuania’s inadequate examination of individual asylum claims. In the Commissioner’s intervention in the case of H.M.M. and Others v. Latvia, the focus is on Latvia's summary returns to Belarus, stressing the need for thorough, individualized assessments and addressing the risk of degrading treatment (Article 3). Lastly, in R.A. and Others v. Poland, the Commissioner’s intervention discusses Poland's summary returns, underscoring violations of fundamental rights and the importance of access to asylum procedures and legal assistance, given Belarus’ reported hostility towards asylum applicants and migrants.

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European Union


CJEU AG Opinion: Validation and clarification by Directive 2002/90 of the conditions for criminalising the facilitation of unauthorised entry for humanitarian purposes in EU and national law

 
On 7 November 2024, Advocate General (AG) Richard de la Tour delivered his opinion in Case C-460/23 (Kinsa).
 
The case involved a third-country national facing prosecution in Italy after contributing to unauthorized entry into Italian territory of her daughter and niece using false identity documents. The Italian court questioned the compatibility of Article 1(1)(a) of Directive 2002/90/EC, which mandates criminalisation of such acts, with the EU principle of proportionality and fundamental rights, especially since Italy's law did not exempt humanitarian motives from criminal liability. The Italian court referred two questions concerning the Directive’s compatibility with the EU Charter of Fundamental Rights, particularly its Article 52(1).
 
First, on the scope of criminalisation under Directive 2002/90/EC, AG de la Tour explained that Article 1(1)(a) criminalises any intentional act that facilitates a third-country national’s unauthorised entry into a Member State, irrespective of financial motive. This provision covers a broad range of acts, including those motivated by family ties or humanitarian reasons. De la Tour emphasised that the Directive grants discretion to Member States to exempt humanitarian assistance from criminal liability under Article 1(2), though this is not obligatory.
 
AG de la Tour then assessed the validity of Article 1(1)(a) of Directive 2002/90/EC in light of the principles of the legality and proportionality of criminal offences and penalties as set out in Articles 49(1) and (3) of the EU Charter. De la Tour recalled the division of powers and shared criminal competence between the European Union and the Member States. He argued that while the Directive’s provisions must be clear, national law ultimately defines specific offenses and penalties, allowing for judicial discretion based on individual case circumstances. As the directive itself does not create criminal liability for individuals, it is up to Member States to enact this criminalisation through national legislation that is proportionate, specific, precise, and clear enough to meet the standard of legal certainty. Member States must also determine, in line with their own criteria for criminal liability, the extent to which a person may qualify for exemption, exoneration, or a reduced sentence based on the circumstances of each case.
 
Moreover, the Advocate General contended that criminalising the facilitation of unauthorised immigration respects the proportionality principle set out in Article 49(3) of the Charter, stressing the importance of addressing the threat to public order and border security and the risks faced by individuals, who may be vulnerable to exploitation and insecurity. While such assistance may not always involve profit or criminal intent, AG de la Tour highlighted the need for criminal oversight of all acts enabling unauthorised entry, as some actions that appear motivated by solidarity or family ties may serve other purposes. The AG noted that it is for the national courts to assess the cases before them, examining the motives of the acts concerned and the existence of any overriding interests. Concerning Italy’s law, which enforces prison sentences and important fines, AG de la Tour stated that national courts must be able to differentiate between the criminalisation of a person who has acted out of humanity or necessity and that of a person who is motivated solely by the criminal intent to commit for financial gain the very act prohibited by law.
 

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EUAA: Publication of two reports on Syria

 
On 22 October 2024, the European Union Agency for Asylum published two reports on Syria.

The first report addresses Syria’s Security Situation. It covers the period from September 2023 to August 2024. It analyses the nature of armed conflicts within the region, including the types of violence, the presence of armed groups in various areas, and the impact on civilian population, such as casualties, fatalities, and conflict-related displacement. The second report describes the profiles that can potentially be targeted by the government and outlines the socioeconomical situation with a special focus on the cities of Damascus, Latakia and Tartous.

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FRA: Publication of the 2024 report on forced return monitoring systems

On 29 October 2024, the European Union Agency For Fundamental Rights (FRA) published its annual report on the Forced Return Monitoring Systems which were set up by the EU Member States under Articles 8(6) of Directive 2008/115/EC (‘Return Directive’).
 
This report provides an overview of the situation of forced return monitoring activities in 2023, identifies the main challenges for effective monitoring of forced return (independence, transparency, phase of removal monitored, types of return operation monitored, funding), and exposes its main findings from monitoring.
 

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National Developments


Netherlands: Council of State rules against detention of Ukrainian nationals seeking temporary protection

 
On 30 October 2024, the Council of State (‘RvS’) ruled in the case BRS.24.000105 (ECLI:NL:RVS:2024:4292) that the detention of two Ukrainian nationals at the border was unlawful.
 
The case involved two Ukrainians who arrived in the Netherlands on 6 March 2024, where they applied for asylum and invoked the Directive 2001/55/EC (‘Temporary Protection Directive ‘) upon arrival at Schiphol Airport. Despite their claim, the Minister of Justice and Security detained them under Article 6(3) of the Dutch Aliens Act 2000 (‘Vw 2000’), which transposes into domestic law the provisions of Article 3(3) of the Directive 2013/33/EU (recast) (‘Reception Directive’). The applicants argued that, as Ukrainians eligible for temporary protection, they should not be subjected to border detention under this provision. The Council of State held that Article 6(3) of the Vw 2000, based on the Reception Directive, does not apply when the Temporary Protection Directive is in effect. The Council found that because the Temporary Protection Directive does not permit border detention for Ukrainians seeking temporary protection, the detention lacked a legal basis from the outset.
 
As a result, the Council declared the appeals well-founded, overturning the lower court’s decision and awarding damages to the applicants.
 
Based on an unofficial translation from within the EWLU team.

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Italy: Justice of the Peace of Rome questions constitutionality of administrative detention provisions for foreign nationals

 
On 17 October 2024, the Justice of Peace of Rome issued an order in case R.G. 61332/2024, concerning the validation of a detention decree for a foreign national held at the Ponte Valeria Repatriation Center, Rome.
 
On 15 October 2024, the Questore of Ascoli Piceno ordered the detention of the foreign national citing the need for identity verification and acquisition of valid travel documents due to the individual's undocumented status and risk of flight. The applicant, a foreign citizen who had been involved in previous offenses, was previously subject to expulsion orders and had no valid residence permit or lawful income. 
 
During the hearing of the request for judicial validation of the detention order, the judge raised significant constitutional concerns regarding the legality of Article 14(2), of Legislative Decree No. 286/1998 (the Consolidated Immigration Act, or T.U.I.), particularly in its regulation of the "modes" of administrative detention. The judge held that Article 14(2) may be in conflict with Article 13 of the Italian Constitution, which mandates that restrictions on personal freedom must be comprehensively regulated by primary legislation, detailing both “cases” and “modes” of restriction. To substantiate this position, the Justice of Peace referred to prior jurisprudence, including Constitutional Court judgment No. 22/2022, which emphasized the need for primary legislation to fully govern restrictions on personal freedom.
 
However, Article 14 of the T.U.I. lacks precise regulation, delegating instead key procedural aspects to subordinate regulations, such as the Presidential Decree No. 394/1999, without providing detainees with judicial protections comparable to those offered to criminal detainees.
 
In light of Article 3 of the Constitution, the T.U.I. creates an unjustifiable distinction between administrative detainees and criminal detainees, with only the latter group benefiting from extensive judicial oversight and procedural rights, thus undermining the right to defence. In this context, the judge cited the Italian Penitentiary Act (Law No. 354/1975), which clearly defines detainee rights and the role of specialized judiciary oversight, as a comparative standard lacking in administrative detention procedures for foreign nationals. Finally, the judge expressed concerns about the detainees' access to adequate health protection and procedural safeguards in Repatriation Centres, referencing Articles 2 and 32 of the Constitution and noting that recent judgments from the European Court of Human Rights underscore these deficiencies.
 
Given these concerns, Justice of Peace suspended the case and referred the constitutional issues raised to the Constitutional Court.
 
Based on an unofficial translation from within the EWLU team.
 

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Italy: The Tribunal of Bologna refers two preliminary questions to the Court of Justice of the EU regarding the designation of third countries as safe countries of origin

 
On 25 October, the Tribunal of Bologna referred two preliminary questions to the Court of Justice of the EU (CJEU) regarding the interpretation of Articles 36, 37 and 46 of Directive 2013/32 (the Asylum Procedures Directive).
 
In this case, which concerned an appeal by a Bangladeshi national against a decision of the Italian asylum authorities to reject their application for international protection due to the application of the safe country of origin concept, the domestic court asked the CJEU:
 
Whether, under European Union law, and in particular under Articles 36, 37 and 46 of the Asylum Procedures Directive, the absence of systematic and generalised forms of persecution directed against members of specific social groups and of real risks of serious harm as defined in Annex I to the Directive is the primary criterion for determining whether the conditions justifying the designation of a country as a safe country of origin exist and, in particular, whether the existence of cases of persecution or risk of serious harm concerning a single social group that is difficult to identify - such as LGBTQAI+ persons, ethnic or religious minorities, women exposed to gender-based violence or trafficking, etc. - exclude such designation.
 
Whether the principle of the primacy of EU law, as established in CJEU jurisprudence, requires that, in the event of a conflict between the provisions of the Asylum Procedures Directive concerning the conditions for the designation of a third country as a safe country of origin and national legislation, the national court must not apply the latter and, in particular, whether the national court remains bound to disapply the act of designation even where that designation is made through primary legislation, such as an ordinary law.
 
Based on an unofficial translation from within the EWLU team.

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The purpose of the ELENA legal updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE/ELENA. The contents of this publication can in no way be taken to reflect the views of ECRE/ELENA and in no way purport to provide an exhaustive update on asylum law developments across Europe. For more up to date information, additions, corrections and comments please contact Julia Zelvenska (jzelvenska@ecre.org).






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