For this reason, like President Lech Wałęsa, we voice our support for the European Union with regard to the current proceedings taking place before the Court of Justice of the EU on the matter of the Polish Law on Ordinary Courts and we are impatiently awaiting the Court’s verdict.
We appeal to the European Committee to take without delay the Law on the Polish Supreme Court to the Court of Justice of the European Union in accordance with the provisions of Article 258 of the Treaty on the Functioning of the European Union and to file the relevant motion for applying interim measures.
The history of our continent teaches us that when the foundations of our common liberties are demolished, their restoration becomes extremely difficult.
As Piotr Buras and I wrote, exactly one week ago, in “European tragedy”: this is not a Polish issue only, but an existential issue for all Europeans, which touches the future of the rule of law anywhere in the EU. The more European media highlight what is at stake in Poland today, and what might still be done; the more policy makers across the EU respond, and call on their governments and the EU to act … the better for our common European future.
The EU has no future as a community based on laws if there are no independent courts in all member states.
For more background on what is at stake, and why so many Poles react so strongly in recent days, read the full report here: www.esiweb.org/poland:
“Concrete swift actions by the European Commission, member states and the European Court of Justice can still pre-empt the worst if
– the European Commission vigorously pursues the ongoing infringement procedure against the Law on the Ordinary Courts, which it launched in December 2017 before the Court of Justice of the European Union. The worst signal at this moment would be to withdraw this before it allows the Court of Justice to assess the state of courts in Poland today;
– The European Commission launches an infringement procedure against the Law on the Supreme Court immediately before the Court of Justice, with the aim to stop the mass dismissal of judges set to take place in early July and which would be almost impossible to reverse later.
– Important EU member states voice their support for both steps. At the same time the Council must ensure that the European Commissions “reasoned proposal” on the rule of law in Poland, based on Article 7 of the EU’ treaty, is put to the vote as soon as possible, and receives broad backing from member states.
The Polish government’s assault on its judiciary represents a threat to the EU’s legal order and long-term political stability. The EU and national legal orders are now so intertwined as to make up a single patchwork quilt, from which so great a hole cannot be cut, without the whole unravelling.
The rule of law is central to the very existence of the European Union. The second article of the Treaty of the European Union states confidently: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.” The EU’s Charter of Fundamental Rights states: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.” What is at stake in Poland today is the future of the EU as a project based on core principles such as the rule of law, separation of powers and human rights.”
I would like to express my deep concern about the crisis caused by the far-reaching changes to the Polish judiciary. These raise fundamental doubts at home and abroad. The violation of the independence of Polish courts threatens very negative consequences, for Poland, but also for the entire European Union. The EU, which is the anchor of the Polish raison d’etat, cannot function without free courts in each member state.
That is why I am calling on the Polish government, the European Commission and all political forces in Poland to do their utmost to prevent the irreversible consequences of the changes to the judiciary and the political crisis they have caused.
Only the verdict of an independent court can solve the problem of the independence of the Polish judiciary today. Political agreements cannot serve as a response to these dubious propositions, wherein the tripartite separation of powers, the fundamental principles of law and the Polish constitution are at stake.
That is why I favour asking the Court of Justice of the European Union to evaluate the most questionable changes to the judiciary system, as its judgments are binding both for the European Commission and for EU member states.
I support the European Commission in relation to the proceedings pending before the EU Court of Justice concerning the law on common courts, and I am awaiting the Court’s decision. I am also calling on the European Commission to refer the law on the Supreme Court to the EU Court of Justice under Article 258 of the EU Treaty. Due to the reduction of the retirement age provided for in this law, about 40 percent of the Supreme Court’s judges will have to end their calling prematurely on 3 July.
These provisions raise very serious legal doubts, and the Tribunal should be given the opportunity to judge them. I appeal to all political forces in Poland to support this legal path, which may lead to the protection of the rule of law in Poland and the EU, and to a resolution of the political conflict. I also appeal to the Polish government to refrain from taking any actions that would hinder such a solution.
Just as in 1980 there could not be freedom without solidarity, so today there cannot be freedom without the rule of law!
As Italy votes – the case for a humane migration policy that works
John Dalhuisen and Gerald Knaus
“Those making moral calculations must reflect on the fact that the only real alternative – in this imperfect world – is not something better, but something much worse.”
Just over a year ago, the Italian government struck a deal with the Libyan authorities to intercept migrants trying to cross the Mediterranean. Following the arrival of half a million refugees and migrants in just three years, the centre-left Democratic Party – the same party that set up the ambitious search and rescue operation, Mare Nostrum, back in 2013 – decided that it had to act. A short Memorandum of Understanding was followed by a string of agreements with Libyan mayors and tribal leaders negotiated – often personally – by Italy’s Minister of Interior, Marco Minniti. The policy had an immediate effect: arrivals in the second half of 2017 were down 70 percent compared to the same period the year before, and deaths at sea declined equally sharply.
Italy’s Libya strategy was backed by the rest of the EU but has been roundly criticised by NGOs and UN agencies for trapping thousands of migrants in a lawless country, in which they risk torture, extortion and slavery, sometimes at the hands of the very groups these agreements were struck with. The Libyan coast guard stands accused of handing over those it intercepts to inhumane detention centres, where abuse is common.
And yet, as Italians head to the polls today one thing looks certain: whichever coalition forms the next government, it is likely to continue the policy of the current minister of the interior, who has become one of the most popular politicians in the country. No political party polling more than a few percent is opposed to the policy. In an election dominated by migration, promising to control borders is a pre-requisite for success.
This sobering reality highlights the true challenge for those who care about the right of refugees and migrants trapped in Libya. It is this: how can one persuade those who will shape Italy’s Mediterranean policy in the coming years that a policy that combines control with empathy, effectiveness with humanity, and reduced irregular migration with human rights is not only possible but also electorally preferable for the next Italian government?
A humane policy must aim for zero deaths at sea. It must ensure that all those rescued by European boats have access to a fair, effective asylum procedure. It must ensure that nobody who is intercepted by the Libyan coast guard ends up in inhumane detention centres. And it must protect those in need of protection from being pushed back into danger in their home countries.
How can these goals be met? The next Italian government should propose to its European partners a realistic plan that includes the following four elements.
First, a common effort is needed to ensure sufficient search and rescue capacity beyond Libya’s territorial waters. In the first six months of 2017 more than 2,500 refugees and migrants drowned. 600 people still drowned in the second half of the year despite the reduction in departures. Instead of demonising NGO rescue boats or leaving it to the Libyan coast guard or the Italian authorities, all European countries should make an even bigger effort.
Second, Western support to the Libyan coast guard and the Libyan authorities should be linked to a clear condition: that anybody intercepted/rescued by its boats and taken back to Libya should be offered immediate evacuation to Niger by IOM. The numbers involved make this possible: in 2017 the Libyan coast guard intercepted less than 1,500 people a month on average. In Niger, those who choose not to apply for asylum should be offered assisted return to their countries of origin via IOM. Those who do should be resettled to a safe country if found to be in need of protection. The same should happen with all those (around 5,000) currently held in Libyan detention centres.
Third, securing European agreements with key African countries of origin for the return of all failed asylum seekers arriving after an agreed date should be a priority. The challenge is to find a humane, legal way of reducing irregular economic migration. This can best be achieved by changing the incentives that currently exist for would be economic migrants. Currently the only disincentives to travelling to Europe are the cost and the risk of the journey. The vast majority of migrants who make it to Italy can be confident that they will be able to stay, whether they are granted international protection or not. Last year 130,000 people applied for asylum in Italy, a majority from West African countries. The same year 12,000 applicants were granted international protection. But (almost) everybody stays in Europe, regardless of their asylum status. One obvious reason for this is the reluctance of countries of origin to cooperate in the identification and return of their citizens. In 2016 more than 100,000 people arrived in Italy from six West African nations; around 4,300 citizens of these countries were granted international protection. And 255 returned, voluntarily or by force. Successive Italian authorities have found it easiest to allow migrants to either move on to other European countries, or integrate, however precariously, into Italy’s thriving black economy. Countries of origins should be offered an annual contingent of regular visas (not just by Italy) for work or study. Such agreements will only work if they are found to be in the interests of countries of origin.
Fourth, seriously discouraging irregular economic migration also requires a quick, but fair, asylum process that should seek to award a protection status or move to deport those found to have no claim within two to three months at most. This need not come at the expense of quality: the Netherlands have one of the best systems in Europe and it consistently delivers informed decisions within this timeframe. It may require keeping most asylum-seekers in closed centres for this duration. It would certainly require the financial and administrative support of other EU countries, which should relocate recognized asylum seekers. This would not be cheap to run, or easy to set up, but as a joint European effort it is doable.
This plan would not end all arrivals in Europe – which is not the goal – but it would sharply reduce numbers – which is. It would create legal channels for refugees and economic migrants. It would reduce deaths at sea and not condemn people to torture in Libyan detention centres. It would guarantee access to asylum for those who do reach Italy and uphold the core principles of the Refugee convention for those who do not.
But would such a “Rome plan” be in the interest of the next Italian government? We believe that it would. Italian politics highlights realities which are true for most of the EU today. Any political party that fails to promise to control borders renders itself unelectable. At the same time there are a lot of voters who care about the right to asylum and do not want to see those who cross borders treated inhumanely. Offering such policies would distinguish mainstream parties, on the left and on the right, from racists on the far-right.
And the human rights community? Many will welcome the commitment to legal paths, but baulk at the prospect of more returns, faster procedures and closed asylum processing centres. But those making moral calculations must reflect on the fact that the only real alternative – in this imperfect world – is not something better, but something much worse. Demagogues are best defeated by demonstrating – with conviction and through effective policies – that a world in which empathy has a central place, is possible.
Such a plan is in Italy’s interest. The EU should back it. So should anyone who cares about human rights in the Mediterranean and about the welfare of those so desperately trying to cross it.
John Dalhuisen is ESI Senior Fellow and former director for Europe @ Amnesty International; Gerald Knaus is ESI founding chairman
Human rights, corruption and what is at stake for the Council of Europe
This week, a rebellion is unfolding in Strasbourg, directed against Spanish senator Pedro Agramunt, the President of the Parliamentary Assembly of the Council of Europe (PACE).
This rebellion is a response to allegations of serious corruption in PACE in recent years, as well as concern over the autocratic capture of this, the oldest, human rights body in Europe. It is a story involving the regime of Ilham Aliyev in Baku, Russian ultra-nationalists such as Leonid Slutsky, Italian Catholic politician Luca Volonte, who received 2.3 million euro from Azerbaijan, and in the last episode even Syrian president Assad in Damascus.
This week, the assembly has had enough, and a coalition of politicians, across party lines and from different national groups, decided that Pedro Agramunt could no longer remain president; this was stated in public, as well as strongly communicated in private.
To explain the frustration and collapse of trust in Agramunt, booed off stage while chairing the opening of the spring session in the Palais de l’Europe in Strasbourg on Monday, one has to see how different developments came together:
First, Agramunt made his career in PACE working on and with Azerbaijan. He visited Azerbaijan more often than any other MP in the assembly; he observed, and helped whitewash, elections in Baku for many years. As one of the rapporteurs of PACE for Azerbaijan he subverted the assembly’s work on political prisoners. As more evidence came out how Azerbaijan operated its lobbying machine in recent years, these actions appear in a different light, and raise serious questions how he understands the role of PACE.
Second. since late 2016 Pedro Agramunt resisted; and even worked to block; serious proposals for an investigation into corruption allegations involving Azerbaijan, as demanded by over 100 MPs in January 2017. In this, Agramunt cooperated with his others, including Spaniard Jordi Xucla, who leads the liberal group in Strasbourg. They used excuses and procedural tricks to oppose any investigation. Why don’t they have any interest in clarifying what happened?
For a short introduction, see the latest ESI newsletter:
Third, Agramunt (together with Destexhe and Xucla) went to Syria in March. He went with Russian ultra-nationalist Leonid Slutsky on what was a Russian PR tour to bolster Assad. There was no other point to this trip: it served no humanitarian purpose and Agramunt did not “build any bridges” either. So why did he go?
Fourth, Agramunt did a bad job addressing many serious concerns and question of the assembly. He offered implausible and contradictory explanations. He apologized for the reaction by the members to his visit to Assad. He apologized for having been manipulated by Russians (Agramunt and Slutsky have been friends for years). What Agramunt did not apologise for was having visited a war-criminal with a Russian delegation.
Agramont, Xucla and Destexhe represent what is wrong in the Council of Europe today. Their cynical views about human rights, their close relationship to autocrats, procedural games and striking vision of the role of the Council of Europe have contributed to lead this institution into its biggest credibility crisis in decades.
This week the assembly in Strasbourg also decided on an external and independent investigation – an unprecedented step – into these corruption allegations in Strasbourg. ESI has worked on this issue for six years now. Here is more:
On 26 January the Immunities Committee of the Parliamentary Assembly of the Council of Europe (PACE), chaired by Social-Democrat Liliane Maury Pasquier from Switzerland, adopted a unanimous declaration on allegations of corruption “to send a clear message of zero tolerance”:
“The committee calls on the Bureau of the Assembly to set up an independent external investigation body to assess the functioning of the Assembly and shed light on hidden practices that favour corruption, the only measure which would end impunity for abuses and restore confidence in the Parliamentary Assembly, its actions and decisions.”
On Friday 27 January the PACE Bureau responded and unanimously agreed:
“… that an independent external investigation needs to be set up to shed light on hidden practices that favour corruption. The Bureau charged the PACE Secretary General with the preparation of a Memorandum on the draft terms of reference of the independent external investigation body.”
Then, on 3 March 2017, Wojciech Sawicki, the Secretary-General of PACE, presented a concrete proposal for an independent external body to investigate corruption allegations (see below).
This is an encouraging and constructive outline. If it would be adopted PACE would be able to restore its honour and credibility. At the same time it would be naive not to expect strong resistance on the part of those who resist (or even fear) transparency.
At a meeting of the Bureau in Madrid on 9 and 10 March no agreement could be reached on how to respond to the Sawicki proposal. It is certain that some will now try to water it down, or to present an alternative plan, that would fall far short of what the Bureau decided on 27 January.
The best would be for the Bureau of PACE to forward the Sawicki proposal to the next regular PACE plenary meeting in April. On a matter of such importance, it is the whole assembly that needs to be brought into the debate. As a background to this discussion: this is the text of the proposal made by the Secretary General.
3 March 2017
Bureau of the Parliamentary Assembly
Allegations of corruption within the Assembly – setting up of an independent external investigation body
Memorandum by the Secretary General of the Parliamentary Assembly
At its meeting on 27 January 2017, the Bureau of the Parliamentary Assembly decided to set up an external investigation body to shed light on the allegations of corruption within the Assembly. This decision was taken in response to the concerns expressed by numerous national delegations, the EPPD/CD and SOC political groups, many Assembly members, as well as non-governmental organisations working in the field of the protection of human rights and the fight against corruption. This decision is in conformity with the position of the Committee on Rules of Procedure, Immunities and Institutional Affairs, to which the matter had been referred by the Bureau on 23 January, as it appear in the declaration adopted by the committee on 26 January.
The Bureau instructed the Secretary General of the Parliamentary Assembly to “prepare a memorandum on the draft terms of reference (legal basis, composition, duration, tasks, competences)” of the independent external investigation body as proposed by the Committee on Rules of Procedure, Immunities and Institutional Affairs.
It should be pointed out that the decision for the Assembly to set up a strictly external investigation body, in such a context, is an unprecedented one. Furthermore, as is the case in many national parliaments, the Assembly has thus far opted for internal parliamentary committees (ad hoc committees comprising members of the Assembly), in accordance with the means and procedures traditionally implemented by parliaments in application of their investigative powers. There was unanimous agreement, both within the Rules Committee and the Bureau of the Assembly, that this option was inappropriate to the case at hand and would not meet the many clear calls for an independent external investigation body.
The aim of this memorandum is to establish the legal and operational reference framework of the investigation body, which should be set up as quickly as possible.
Statutory and regulatory framework
Pursuant to Article 24 of the Statute of the Council of Europe, the Parliamentary Assembly “may with due regard to the provisions of Article 38.d,establish committees or commissions to consider and report to it any matter which falls within its competence under Article 23, to examine and prepare questions on its agenda and to advise on all matters of procedure.”
This was the case for the “Commission of Eminent Statesmen”, known as the “Colombo Commission”, established by the Assembly through Recommendation 994 (1984) on the future of European co-operation. This Commission, tasked with working out future prospects for European co-operation “beyond the present decade”, comprised eight eminent European figures from various member states serving in individual capacity.
Accordingly, the Assembly has the authority to establish an independent investigation body, whose terms of reference must be approved by the Assembly (in the framework of the Progress Report of the Bureau and the Standing Committee).
Draft terms of reference of the independent external investigation body
3.1 Title and length of the term of office
The Assembly decides to set up an independent external investigation body to look into allegations of corruption within the Assembly.
It shall begin its duties with effect from the appointment of its members and its duties shall terminate on the submission of its final report, or at the latest on 31 December 2017. The Bureau of the Assembly may extend the investigation body’s terms of reference, if need be.
The purpose of the investigation body is to carry out a detailed inquiry into the allegations of corruption and fostering of interests made against certain members or former members of the Assembly, to examine the practical functioning of the Assembly in tis various activities (including, but not restricted to part-sessions, committee and sub-committee meetings, rapporteur missions, election observation missions and participation in various events) and its decision-making mechanisms in order to:
– verify whether there are any forms of individual conduct by members of the Assembly or former members of the Assembly which have not respected the provisions of the Code of Conduct for members of the Parliamentary Assembly and other relevant codes of conduct;
– identify any practices contrary to the Assembly’s ethical standards, and determine the extent thereof;
– establish, in light of these findings, whether there is sufficient proof to take action against members of former members of the Assembly, pursuant to paragraphs 19 and 20 of the Code of Conduct for members of the Parliamentary Assembly;
– draw up recommendations on the measures to be implemented to rectify the shortcomings and fill the gaps in the Assembly’s ethical framework.
The investigation body shall comprise three members, independent senior figures, from institutions enjoying the highest moral reputation, having proved and acknowledged professional competence, expertise and experience in connection with the mission of the investigation body (such as ethics office, financial auditor, fraud examiner, legal processional having server as an investigator, prosecutor, judge or expert in procedures for monitoring ethical standards).
Members must have experience of parliamentary functioning and, if possible, knowledge of the functioning of the Council of Europe.
Members are appointed by the Bureau of the Assembly, which shall seek a suitable balance of skills and knowledge – and wherever possible a gender balance. These appointments are submitted to the Assembly for ratification. Once appointed, members cannot be dismissed.
A vacancy caused by resignation or death shall be filled for the remainder of the term of office by the Bureau of the Assembly, subject to ratification of the appointment by the Assembly.
3.4 Procedure and competence
The investigation body shall decide on its mode of operation, its working methods and the procedures required to enable it to fulfil its mission, in keeping with the legal and regulatory framework of the Council of Europe.
The investigation body shall gather and make use of all relevant information and all documentary, testimonial and material evidence necessary for the fulfilment of its mission. It may, in particular:
– summon anyone, in particular any member or former member of the Assembly and any member of the Assembly secretariat, to give evidence,
– hear any witness wishing to be heard by the investigation body,
– request the assistance of any national authority of a member state,
– have access to or request the provision of any document it deems relevant for its investigation, irrespective of its form or medium – printed, manuscript, electronic, photographic, audio/video recording – or its nature – public or private.
The investigation body shall have no jurisdictional competence. It may decide to transmit the information it has gathered to any national judicial authorities, on official request, in the context of ongoing criminal investigations or proceedings, in keeping with the legal and regulatory framework of the Council of Europe.
The work of the investigation body shall enjoy the utmost confidentiality.
The investigation body shall report back to the Bureau of the Assembly, presenting a final report. This report shall be made public. The investigation body may decide that parts of this report shall remain confidential.
The working languages of the investigation body shall be the two official languages of the Organisation.
The investigation body shall sit in Strasbourg (at the seat of the Council of Europe) and may, in the exercise of its mission, travel to any member state.
In drafting its recommendations, the investigation body shall refer to the ethical standards in force in the Assembly and shall take account of the case-law of the European Court of Human Rights and the work of the Group of States against Corruption (GRECO), MONEYVAL and the Venice Commission.
3.5 Status of the investigation body
The members of the investigation body shall serve in an individual capacity, independently of their national obligations.
In the exercise of their duties, the members of the investigation body shall enjoy the privileges and immunities granted to experts of the Council of Europe (applicable under Article 2 of the Protocol to the General Agreement on Privileges and Immunities (ETS No. 10)). Council of Europe member states are called upon to facilitate the mission of the investigation body and, in particular, guarantee the freedom of movement of its members within their respective territory.
Privileges and immunities are granted to the members of the investigation body in the interests of the Council of Europe, not for their personal benefit, in order to enable them to carry out their duties in an independent and efficient manner.
3.6 Rights and obligations
Pursuant to paragraph 21 of the Code of Conduct for members of the Parliamentary Assembly, the members and honorary members of the Assembly shall undertake to co-operate fully within the investigation body, in the exercise of its mission and at every stage of its investigation. They shall be required to provide any information demanded of them and any document in their possession.
Staff of the Council of Europe Secretariat, including the Assembly secretariat, shall be covered, from the point of view of whistle-blowing, by the provisions of Rule No. 1327 of the Secretary General of the Council of Europe of 10 January 2011 on awareness and prevention of fraud and corruption.
The protection recognized by the above mentioned Rule No. 1327 shall apply to any witness heard by the investigation body who, although they are not Council of Europe Secretariat members, participate in the Council of Europe’s activities, wherever they may be held – in particular trainees, experts, consultants.
The rules governing the access to, holding of and exploitation of Council of Europe documents apply to the investigation body. The Secretary General of the Council of Europe is called upon to facilitate the mission of the investigation body by putting at its disposal the documents, of any kind, which the investigation body believes are necessary. The investigation body shall make use of confidential or restricted documents only if they are directly related to the investigation it is tasked with.
In its final report the investigation body shall mention any refusal to co-operate, or any refusal to disclose information or to give access to or transmit any document necessary to carry out its duties. In case of non-cooperation or insufficient cooperation, members or honorary members of the Assembly would be liable to the sanctions provided for by the Code of Conduct for members of the Parliamentary Assembly.
Means and material conditions of operation of the independent investigation body
The Secretary General of the Parliamentary Assembly shall ensure that the investigation body is provided with the administrative and financial resources required to fulfill its mission and covering all operating costs of the investigation body and its secretariat (wages, fees, per diem, travel expenses in accordance with the rules applicable to Council of Europe official journeys, insurance).
The investigation body shall be assisted by a secretariat with knowledge and expertise in the functioning of the Council of Europe, that is however independent of the Parliamentary Assembly.
The premises made available to the investigation body shall ensure a working environment guaranteeing confidentiality, security and calm.
The Bureau of the Assembly is invited to consider the above proposals and:
– adopt the draft terms of reference of the investigation body, as it appears in Part 3. This must be ratified by the Assembly, in the framework of the Progress Report of the Bureau and the Standing Committee;
– instruct the Secretary General of the Parliamentary Assembly to hold private talks with relevant institutions/ senior figures likely to accept the mission assigned to the investigation body, and to come up with proposals on the composition of the investigation body at the next Bureau meeting;
– instruct the Secretary General of the Parliamentary Assembly to guarantee the investigation body the resources required to ensure its proper functioning, in accordance with the stipulations contained in Part 4 and, to this end, make provisions in the Assembly budget for the appropriations necessary for the functioning of the investigation body, and if need be, in accordance with Article 38.d. of the Statute of the Council of Europe, ask the Secretary General of the Council of Europe to allocate a specific budget for the investigation body.
The success of the independent investigation body’s mission shall rest on the full co-operation of the members and former members of the Assembly, and on that of the staff of the secretariat of the Council of Europe, in particular of the Assembly. Having regard to the rights and obligations of staff members and the guarantees conferred upon them by their status, it is essential to notify the Secretary General of the Council of Europe of these terms of reference. Council of Europe staff members are responsible to the Secretary General, pursuant to Article 2 of the Staff Regulations, and the latter shall therefore be invited to formally impose on the staff members a duty of co-operation with the investigation body.
The mission of the independent investigation body may also require the full co-operation of the national authorities of certain member states – national parliaments, Ministries of Foreign Affairs and of Justice, judicial services, etc. Accordingly, the Committee of Ministers should be informed of the arrangements put in place by the Assembly and be invited to adopt a Resolution in which it would officially call on the member states to support and facilitate the mission of the investigation body, to pledge to fully co-operate with the investigation body, in particular to guarantee the freedom of movement of its members within the territory on of their respective state, and to ensure that any witness will be afforded legal protection at national level.
 Parliamentary delegations of Switzerland on 17 January, Luxembourg on 24 January, Denmark, Estonia, Finland, Latvia, Lithuania, Norway and Sweden in a joint letter on 25 January, Belgium, the Netherlands on 25 January, France, Germany on 26 January and thereafter delegations of Italy on 3 February and Austria on 17 February.
 See Written Declaration No. 624 on 25 January 2017 on Parliamentary Assembly integrity (Doc. 14256).
 The opinion of the Directorate of Legal Advice and Public International Law was sought for the purposes of drafting this memorandum.
 Article 38.d: „The Secretary General shall refer to the Committee [of Ministers] requests from the Assembly which involve expenditure exceeding the amount already allocated in the budget for the Assembly and its activities“.
 In compliance with Article 29 of the Stature and Rule 41.a of the Assembly’s Rules of Procedure, an Assembly resolution establishing committees or commissions shall require a two-thirds majority of the representatives casting a vote.
 The draft terms of reference are based on existing precedents for independent committees of inquiry set up over the past decade at international level.
 Representatives attending meetings convened by the Council of Europe (…) shall, while exercising their functions and during their journeys to and from the place of meeting, enjoy the following privileges and immunities:
Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their official capacity, immunity from legal process of every kind.
Inviolability for all papers and documents.
The right to use codes and to receive papers or correspondence by courier or in sealed bags.
Exemption in respect of themselves and their spouses from immigration restrictions or aliens registration in the State which they are visiting or through which they are passing in the exercise of their functions.
The same facilities in respect of currency or exchange of restrictions as are accorded to representatives of comparable rank of diplomatic missions.
The same immunities and facilities in respect of their personal baggage as are accorded to members of comparable rank of diplomatic missions.”
The representatives, however, “shall not be exempt from arrest and prosecution when found committing, attempting to commit, or just having committed an offence.” Lastly, “the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer engaged in the discharge of such duties.”
A new ESI report on this is coming early next week – in recent weeks we presented the ideas below at many meetings to policy makers, from Athens to Stockholm, from Berlin to Brussels.
If Europe’s current refugee and migration crisis has made anything clear over the past two years, it is this: the European Union urgently needs a credible, effective policy on asylum and border management that respects existing international and EU refugee law and controls external land and sea borders. It must treat asylum seekers respectfully while deterring irregular migration and undermining the business model of smugglers; it must save lives and respect the fundamental ethical norm of the rule of rescue, not push individuals in need into danger, which is at the heart of the UN Refugee convention (and its key article 33 on no-push backs).
The EU-Turkey agreement on refugees in the Aegean adopted on March 18, 2016, contains the elements of such a policy – but to serve as a good model it has to be fully implemented. The agreement is based on existing EU laws on asylum and on the principles of the UN Refugee Convention. It commits the EU to helping improve conditions for refugees in Turkey (the country in the world hosting the largest number of refugees today) with the most generous contribution the EU has ever made for refugees in any country in the world. It also makes improving the work and quality of the Turkish asylum service a matter of direct interest to the EU: only if Turkey has a functioning asylum system can it be considered a safe third country. Finally and crucially, it foresees substantial resettlement of refugees in an orderly manner from Turkey once flows of irregular arrivals in the Aegean are reduced. The fact that this last provision has not yet been implemented seriously does not make it any less important to the overall logic of the agreement.
Even without full implementation, the agreement has produced a dramatic and immediate impact on refugee movements in the Eastern Mediterranean. Crossings in the Aegean Sea fell from 115,000 in the first two months of the year to 3,300 in June and July. The number of people who drowned in the Aegean fell from 366 people in the first three months of the year to seven between May and July. This was achieved without pushing refugees to take other, more dangerous routes (the people arriving in Southern Italy this year were from African countries). And there have not been any mass expulsions from Greece either, something NGOs had feared would happen. In fact, more people had been sent back from Greece to Turkey in the three months preceding the agreement (967) than in the ten months since it was concluded (777).
It is obvious, however, that the EU has no current plan or credible strategy for the Central Mediterranean, and this presents a huge risk. The status quo is clearly unacceptable from a humanitarian point of view: in 2016 an unprecedented number of people (more than 4,400) drowned in the Central Mediterranean. It is also politically explosive, lending ammunition to those on the far-right across Europe (from Geert Wilders in the Netherlands to Marine Le Pen in France and the Alternative für Deutschland in Germany). They argue that the only way to control migration to Europe is by abolishing the Schengen open borders regime and restoring border controls within the European Union. The lack of a coherent EU strategy has led some to suggest looking to Australia for inspiration, praising a model whereby anyone reaching the EU by sea should be denied the right to even apply for asylum in the EU and be returned to North Africa. This would amount to the EU turning its back on the Refugee Convention, which would be a moment of existential crisis also for the UNHCR anf global policy on asylum.
A humane and effective border and asylum policy is indeed possible, and it does not involve emulating the Australian model. The first step requires implementing the EU-Turkey agreement in full. The second step would involve applying the right lessons to the Central Mediterranean as well. Both would require the EU to set up new structures, including credible EU asylum missions and instruments to resettle refugees, among others. Both depend on Greece and Italy persuading other EU countries that the challenge they face is a European one that requires innovative European solutions.
Nearly a year after it was signed into action, the EU-Turkey agreement remains at risk – and that despite its successes so far. This is because of inadequate implementation.
On average, less than 100 people have been returned to Turkey each month; many people who arrived on the Aegean islands have remained struck there in limbo for extended periods of time, while the number of new arrivals has been some 100 a day on average in recent months.
All this creates a realistic scenario for failure. Greek authorities, under pressure and without an answer for islanders who see Lesbos and Chios turning into a European Nauru (the Pacific island where Australia sends people who arrive by boat), might move larger numbers of people from the Aegean islands to the mainland. That would again lead to rising numbers of people crossing the Aegean. Once larger groups are moved to the Greek mainland, the humanitarian situation for refugees there, which is already bad, will deteriorate further. We would see the populist-led calls to build a stronger wall north of Greece multiply.
Already now, the number one topic of conversation among migrants stranded on the Greek mainland is the cost of getting smuggled across the Balkan route, either via Macedonia or Bulgaria. It is hard to imagine Greece making a major effort to stop people from leaving the country if Greeks feel the EU has left them alone. The weak Macedonian reception and asylum system might then collapse within weeks, once more people cross the border. The Western Balkans would turn into a battleground for migrants, smugglers, border guards, soldiers and vigilante groups, destabilizing an already fragile region.
If this scenario played out, it would be a serious blow to European leaders like Angela Merkel, who argue that it is possible to have a humane and effective EU policy on border management while respecting the refugee convention. It would also be a blow to already tense EU-Turkish relations. What is needed now is the right implementation strategy.
The EU should appoint a special representative for the implementation of the EU-Turkey agreement – a former prime minister or former foreign minister with the experience and authority to address urgent implementation issues on the ground. To preserve the agreement, the European Commission and Turkey should address all concerns raised about Turkey as a safe third country for those who should be returned from Greece. Such concerns can be addressed. As UNHCR noted already on March 18, 2016, everything depends on serious implementation:
“People being returned to Turkey and needing international protection must have a fair and proper determination of their claims, and within a reasonable time. Assurances against refoulement, or forced return, must be in place. Reception and other arrangements need to be readied in Turkey before anyone is returned from Greece. People determined to be needing international protection need to be able to enjoy asylum, without discrimination, in accordance with accepted international standards, including effective access to work, health care, education for children, and, as necessary, social assistance.”
Turkey would need to present a concrete proposal on how to ensure – and how to make transparent – that it is fulfilling the conditions set by EU law to be a credible safe third country for refugees of any origin, whether they are Pakistani, Afghan or Syrian, that Greece might return. It would need to guarantee – with more assistance from the EU and UNCHR, if need be – that there are sufficient asylum case workers, translators and legal aid in place to provide an efficient asylum process. There would need to be full transparency surrounding what is happening to each and every person returned, as well. Given the small number of people concerned this is all doable.
At the same time, the EU should send a European asylum mission to the Greek islands, including at least 200 case workers that should be able to take binding decisions on asylum claims (which would require an invitation by the Greek government and changes in Greek law, and assurances that any decision taken by such a mission could be suspended by a chief Greek legal officer). Those who are given protection should then be relocated across the EU immediately; all others sent back to Turkey. The principle behind an EU mission would be obvious: in times of crisis, there is a need for a substantial number of case workers, interpreters and reception officers to ensure quality standards for assessing protection requests, and with speed where most asylum requests are submitted. It would be unfair to blame Greece or any other country for being unable to deal rapidly with asylum requests of the tens of thousands of people; it would be unreasonable for Greece not to ask for such a European mission. Ultimately it is a matter of political will on the part of the EU and Turkey to deal with the few thousand asylum seekers now on the Aegean islands, in line with international norms and EU directives for their mutual benefit.
Adapting the Agreement
So far it has proven difficult to send a sufficient number of EU asylum caseworkers to Greece. At the same time, there are still no decent reception conditions for the relatively small number of people who have arrived on the islands since April 2016. These challenges cast serious doubt on proposals to slow illegal migration to Italy by setting up reception centers somewhere in North Africa; as some EU politicans have suggested, everyone who reaches Italy would be taken there to have their asylum claims processed. This is sometimes presented as a model inspired by Australia, which puts everyone who arrives via the sea in camps on the Pacific island of Nauru or on Manus Island in Papua New Guinea. In fact, asylum seekers held in Nauru in recent years have been forced to wait many years for their applications to be decided. Conditions of detention were and remain intentionally harsh to deter further arrivals. And once asylum is granted, it remains unclear where refugees might go (recently the US offered to help out and promised to accept a large number of people moved to these islands by Australia; it remains unclear whether this will actually happen). It is important to note that Nauru never hosted more than a thousand people at any given time. The notion that the EU might outsource the detention of tens of thousands of asylum seekers to camps across North Africa for long periods and under similar conditions is surely a recipe for failure.
So how might the EU reduce the number of arrivals – and deaths – in the Central Mediterranean? The key lies in fast processing of asylum applications of anyone who arrives, and in fast returns of those whose claims are rejected to their countries of origin. Both of these tasks should become European responsibilities. Anyone who would not get asylum should be returned to his or her countries of origin. Prioritizing the returns of anyone who reaches Italy after a given date and does not get asylum should become the central issue to be negotiated with African countries of origin. On the other hand, those who are given asylum should be relocated across the EU to support Italy and Greece and replace the inadequate Dublin system (the notion that Dutch or German case officers would decide which refugees remain in Greece or Italy would obviously not be acceptable to these countries).
What would be the likely impact of such a policy on arrivals? It is very likely that these would fall sharply.
Nigerians were the largest group of arrivals in 2016, and the majority would be unlikely to risk their lives crossing the deadly Sahara, unstable Libya and the Central Mediterranean and spending thousands of Euros on smugglers when the likelihood of being returned to Nigeria would be upwards of 70 percent, which is the current rate of rejection of Nigerian asylum applications in the EU. As noted, ensuring that Nigeria, Senegal and other countries take back their nationals who arrive in Italy after an agreed date should be the chief priority in talks between the EU and Nigeria – similar to the commitment Turkey made to take back without delay people who arrive in Greece after March 20, 2016. This would require that an EU asylum mission in Italy is able to process all claims within weeks. Rapid readmission would bring down the number of people who stay in the EU after their applications are rejected. In this way, the number of irregular arrivals becomes manageable – with less business for smugglers and far fewer deaths at sea. The aim might be to reduce the number of all irregular arrivals by sea to below 100,000 (for an EU of over 500 million people) already in 2017. Such a goal is realistic: it is, after all, the average number of irregular arrivals into the whole EU in the years 2009-2013.
European leaders could thus demonstrate to their electorates that it is possible to control external sea borders without undermining the refugee convention or treating those who arrive badly to deter new arrivals. European leaders should simultaneously push forward the global debate on orderly transfers of refugees through resettlement. The only way to do so is to lead by example, building up EU capacity for resettlement as well boosting the UNHCR’s capacity to do more. Coalitions of willing EU states should commit to resettle a significant number of vulnerable refugees each year.
In recent decades, resettlement has never reached more than 100,000 a year in the whole world, and of these the US took the lion’s share. Until now European states have not built up the bureaucratic machinery for large-scale resettlement. For this reason, pushing the EU to fully implement the resettlement provisions in the Aegean agreement (point 4) is vital and deserves to be an advocacy priority for human rights NGOs and refugee rights defenders.
In the face of rising anti-refugee sentiment across the world, it will take a strong coalition of countries to protect the refugee convention. Such a coalition requires governments who are able to win elections on the platform that a humane asylum policy and effective border control can be combined and can even reinforce each other. Such a policy needs to be based on core principles: no-push backs; no-Nauru; discouraging irregular passage through fast readmission and fast asylum processes; expansion of resettlement of refugees; and serious financial help to host countries elsewhere. If this happens lessons from the Aegean agreement with Turkey – the only plan in recent years that dramatically reduced the numbers of people arriving without changing EU refugee law – might help develop a blueprint for protecting refugee rights in an age of anxiety. The stakes – for Europe and for the UN Refugee Convention – could not be higher.
Thinking a lot recently about Karl Lueger, a successful politician in Vienna, one hundred and a few years ago. Weekend reading: an excellent book by Brigitte Haman, “Hitler’s Vienna”. On the crazy and dangerous ideas and political models emerging in the middle of a cosmopolitan metropolis in a complacent era.
What seems new in our politics today is not really new at all, facebok, twitter or other social media notwithstanding. Nor is there anything new in “post-truth” politics – when was “truth” important to nationalists, colonialists, decolonisers, or communists in the 20th century? If you do not have Haman’s book ready, have a look at the below description of one of the most respected democratic politicians in the late Habsburg empire. Then replace “Jew” with “Muslim” or “foreigner” in the text below, and you have a not so secret formula, which looks set to become the inspiration for political leaders in much of what was until yesterday the West … until it stops working.
It worked then, for Karl Lueger. He won elections. He managed to run a decent city administration. He also built a lot. His statue is still up in Vienna. But the consequences of this style of politics in the short and medium term were disastrous for his city, country and continent.
As will be the consequences this time, if this style of thinking, of politics without constraints, is not contained. Or, better put: defeated in elections. This is the only response that matters.
“Karl Lueger was an outstanding example of this new kind of politician: he attempted to get a feeling for the mood of “the people”; he like to hold speeches in dialect, took account of the intellectual level of his listeners, made complex issues simple and tried to entertain his public with humorous remarks.
He was especially successful when he attacked the supposed enemies of his listeners. He stoked antipathy to politicians with different points of view as well as national and religious minorities. His polemical attacks, sometimes extremely drastically formulated, were not directed towards reason but consciously appealed to emotions and instincts. Thus he understood how to use rousing speeches to win over the Viennese population to his cause, consciously invoking stereotypical images of alleged enemies and, in particular, making use of anti-Semitic prejudice. Every set back was reduced to a simple formula: “The Jews are to blame” and stirred up hatred with statements such as: “ We will prevent the oppression of Christians and a new Palestine replacing the ancient Austrian empire of Christians”.
In the process he activated the traditional Catholic anti-Semitism directed against “the people who killed God”. He combined it with anti-liberal and anti-capitalist elements and thus addressed the widespread prejudice against “money and stock market Jews”, “press Jews”, “ink Jews”, i.e. Jewish intellectuals and businessmen. Under his leadership the Christian Socialists regarded their main political task as the reduction of the “rapidly growing power of the Jews” and the reversal of their emancipation which had only taken place in 1867.”