Turin's CIE - International University College of Turin
Turin's CIE - International University College of Turin Turin's CIE - International University College of Turin
P A R T C . J U D I C I A L A N D L E G A L P R O C E S S ES This section examines the judicial and legal processes concerning Turin’s CIE by considering: the level to which detainees understand what CIE is; the Italian legal and procedural framework; relationships between detainees and lawyers; the role of embassies and consulates in the identification procedure; and political asylum and humanitarian protection. Judicial and legal processes are two vital mechanisms through which the written word of human rights can be given life and made accessible to all. In contra-distinction, judicial and legal processes can also be a great barrier to accessing rights where there are problems such as the absence of clear procedures or an effective remedy, insufficient training in the public administration or inadequate legal and linguistic assistance for vulnerable individuals. Part C draws on the interviewees’ experiences in order to examine both the positive and negative ways in which the judicial and legal processes surrounding Turin’s CIE can serve to enhance or detract from our ability to give life to the text and intention of human rights law. VIII. UNDERSTANDING WHAT CIE IS 1. LEGAL FRAMEWORK: THE RIGHT TO A FAIR TRIAL, THE RIGHT TO AN EFFECTIVE REMEDY AND PROCEDURAL SAFEGUARDS FOR PEOPLE FACING EXPULSION Council of Europe Article 1 of Protocol 7 of the ECHR 99 (as amended by Protocol 11 ECHR 100 ) sets out “procedural safeguards relating to expulsion of aliens”: “1(1) An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: a) to submit reasons against his expulsion, b) to have his case reviewed, and c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.” “1(2) An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.” Article 1 of Protocol 7 ECHR is limited to third-country nationals who are “lawfully resident in the territory of the state” and therefore it does not offer protection to those who were not lawful residents. The right to a fair trial is generally provided for by Article 6(1) of the ECHR, which states: 99 Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 22 November 1984, ETS No. 117 (entered into force 1 November 1988). 100 Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11 May 1994, ETS No. 155 (entered into force on 1 November 1998). 58 | P a g e
“6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” However, Article 6(1) ECHR does not apply to expulsion and extradition proceedings and there are only very limited circumstances when it can apply to immigration matters 101 . In fact, this distinction between rights protection in criminal matters and rights protection in civil or administrative matters exists both in the ECHR as well as in Italian domestic law and procedure. There is a big difference between the procedural guarantees and protections that are afforded to migrants in immigration matters when compared with those rights guaranteed to accused people in the criminal justice system. Yet, in both cases an individual risks losing their liberty. Article 13 of the ECHR states: “13 Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority […].” Article 13 ECHR exists in order to ensure that there are remedies in national legal orders to examine and enforce the other rights and freedoms that are protected in the ECHR. Italy is obliged to provide an effective method of examining whether or not a violation has occurred, regardless of whether a violation actually occurred. In order to comply with the right to an effective remedy, the Italian domestic legal regime must ensure the following 102 : a) The remedy needs to exist institutionally 103 ; b) The remedy must be adequate 104 ; and c) The remedy must be available to the individual. The third requirement that a remedy must be available to the individual is particularly relevant when considering the extent to which some detainees actually understand what CIE is and what their personal legal circumstances and options are. For example, Article 13 ECHR has been interpreted to mean that an asylum seeker must not only have access to an appeal procedure, but they should also be in a position to initiate such an appeal and that appeal should have a suspense effect 105 . 101 See for example Maaouia v. France, 39652/98, Council of Europe: European Court of Human Rights, 22 March 2000. 102 See Hélène Lambert, The position of aliens in relation to the European Convention on Human Rights, Council of Europe Publishing (2006), 37-38. 103 Silver and Others v. United Kingdom, 9310/81, Council of Europe: European Court of Human Rights, 6 September 1987, para. 113; Leander v. Sweeden, 9248/81, Council of Europe: European Court of Human Rights, 26 March 1987, paras. 29-30; and Klass and Others v. the Federal Republic of Germany, (Series A, 28) 2 EHRR 214, 6, Council of Europe: European Court of Human Rights, 6 September 1978, para. 67. 104 See for example Chahal v. The United Kingdom, 70/1995/576/662, Council of Europe: European Court of Human Rights, 15 November 1996. 105 Lambert, The position of aliens in relation to the European Convention on Human Rights. See also, Committee of Ministers of the Council of Europe, Commission Report on Platform “Ärzte für das Leben” v. Austria, judgment of 21 June 1988; Recommendation No. R 98(13) of the Committee of Ministers of the Council of Europe, Explanatory Memorandum, para. 16. 59 | P a g e
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P A R T C . J U D I C I A L A N D L E G A L<br />
P R O C E S S ES<br />
This section examines the judicial and legal processes concerning <strong>Turin</strong>’s <strong>CIE</strong> by considering: the<br />
level to which detainees understand what <strong>CIE</strong> is; the Italian legal and procedural framework;<br />
relationships between detainees and lawyers; the role <strong>of</strong> embassies and consulates in the<br />
identification procedure; and political asylum and humanitarian protection. Judicial and legal<br />
processes are two vital mechanisms through which the written word <strong>of</strong> human rights can be given<br />
life and made accessible to all. In contra-distinction, judicial and legal processes can also be a<br />
great barrier to accessing rights where there are problems such as the absence <strong>of</strong> clear procedures<br />
or an effective remedy, insufficient training in the public administration or inadequate legal and<br />
linguistic assistance for vulnerable individuals. Part C draws on the interviewees’ experiences in<br />
order to examine both the positive and negative ways in which the judicial and legal processes<br />
surrounding <strong>Turin</strong>’s <strong>CIE</strong> can serve to enhance or detract from our ability to give life to the text and<br />
intention <strong>of</strong> human rights law.<br />
VIII. UNDERSTANDING WHAT <strong>CIE</strong> IS<br />
1. LEGAL FRAMEWORK: THE RIGHT TO A FAIR TRIAL, THE RIGHT TO AN<br />
EFFECTIVE REMEDY AND PROCEDURAL SAFEGUARDS FOR PEOPLE<br />
FACING EXPULSION<br />
Council <strong>of</strong> Europe<br />
Article 1 <strong>of</strong> Protocol 7 <strong>of</strong> the ECHR 99 (as amended by Protocol 11 ECHR 100 ) sets out “procedural<br />
safeguards relating to expulsion <strong>of</strong> aliens”:<br />
“1(1) An alien lawfully resident in the territory <strong>of</strong> a State shall not be expelled therefrom<br />
except in pursuance <strong>of</strong> a decision reached in accordance with law and shall be allowed:<br />
a) to submit reasons against his expulsion,<br />
b) to have his case reviewed, and<br />
c) to be represented for these purposes before the competent authority or a person<br />
or persons designated by that authority.”<br />
“1(2) An alien may be expelled before the exercise <strong>of</strong> his rights under paragraph 1.a, b<br />
and c <strong>of</strong> this Article, when such expulsion is necessary in the interests <strong>of</strong> public order or<br />
is grounded on reasons <strong>of</strong> national security.”<br />
Article 1 <strong>of</strong> Protocol 7 ECHR is limited to third-country nationals who are “lawfully resident in<br />
the territory <strong>of</strong> the state” and therefore it does not <strong>of</strong>fer protection to those who were not lawful<br />
residents.<br />
The right to a fair trial is generally provided for by Article 6(1) <strong>of</strong> the ECHR, which states:<br />
99 Protocol No. 7 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, opened for<br />
signature 22 November 1984, ETS No. 117 (entered into force 1 November 1988).<br />
100 Protocol No. 11 to the Convention for the Protection <strong>of</strong> Human Rights and Fundamental Freedoms, opened<br />
for signature 11 May 1994, ETS No. 155 (entered into force on 1 November 1998).<br />
58 | P a g e
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