Third AOM Training Session
18-20 September 2012
College of Spain, International Campus, Paris
“Mediators and Ombudsmen facing the migration phenomenon”
SUMMARY REPORTOpening ceremony:
TheThird Training Session was organised in collaboration between the Moroccan Institution of the Mediator, the French Defender of Rights and the Spanish Defender of the People as well as with the contribution of the Council of Europe. The training took place at the College of Spain, on the International Campus in Paris and the theme discussed was “Mediators and Ombudsmen facing the migration phenomenon”. This session gathered a total of 25 participants and experts from France, the Republic of Macedonia, Georgia, Greece, Lebanon, Morocco, Serbia, and Spain.An expert from the European Ombudsman as well as a member of the Council of Europe were also present. Two NGOs also sent a representative.
During the opening session, Ms. Maryvonne Lyazid, Deputy of the French Defender of Rights and Vice-President of the Commission in charge of the fight against discrimination and the promotion of equality, expressed her gratitude for the organisation of the training, of which the theme was very important to address, although difficult because of its different layers of analysis.
Mr. Abdelaziz Benzakour, President of the Association and Ombudsman of the Kingdom of Morocco then took the floor to welcome the participants and to thank all the parties involved in the organisation of the training. He explained how complex the phenomenon of migration is, and how crucial cooperation is in order to solve complex cases. He underlined the fact that migration as a phenomenon has always existed and always will, which is why it needs to be understood and dealt with. He also mentioned the importance of understanding the difference between origin, transit and destination countries.
Mr. Mats Lindberg from the Council of Europe then took the floor to thank all participants and to express his strong interest in the theme chosen, as it is a controversial, but very important one to discuss. He also explained that throughout its different bodies, the Council of Europe has been determined to respond to the migration phenomenon and has emphasised how important collaboration is, hence how important this training is.
Module 1: The possibility for Ombudsmen to rely on the Council of Europe and European Court of Human Rights standards relating to the migrant’s protection: the Greek Ombudsman’s experience
Expert: Maria VOUTSINOU, Senior Investigator, Ombudsman Institution, Greece
The Greek Ombudsman was first established in 1998. In 2005, it was designated as a specialised equality body and in 2011 as a monitoring mechanism.
Ever since its creation, the Greek Ombudsman has been very active in the field of migration because the country experienced, in the 1990s, a great wave of migration arriving from the Balkan countries, especially given the contemporary political context. Migration flows continue to widely occur today, with migrants arriving mainly from African and Asian countries, but still from Balkan countries. With the given economic crisis that is taking place, Greece needs to ensure that the rights of migrants are still respected. Greece has the obligation to respect these people’s rights, regardless of their status (may they be asylum seekers in need of protection, members of a minority group [women, elderly people, unaccompanied minors…], or irregular migrants who did not follow any official procedures but still deserve a humane treatment).
As far as protecting migrants, guidelines published by the Council of Europe in May 2011 inAthens have been quite helpful in guiding the Greek Ombudsman’s workvis-à-vis migration issues. Migration is a very complex phenomenon, which combines many different topics: border management, asylum procedures, returns (voluntary or forced) to a country of origin (third country), legal status (migrants who usually have long term resident permits and ought to be granted rights according to International Law and be treated equally to citizens of the host country, raising issues of citizenship and naturalisation), illegal status…etc. The main topics which were discussed during the Athens meeting were the role of the Council of Europe in setting standards, monitoring the cooperative mechanism with and between MemberStates and competent authorities, and defining how to deal with violations of human rights in the context of migration. The guidelines and recommendations issued by the Council of Europe have been very helpful to the Greek Ombudsman as far as forced returns in particular.
It is important to remember that violations can occur at many different levels of the migration cycle (early state when migrants attempt to cross the border, to their access or lack thereof to the asylum procedure, to questions of return procedure, etc.). The Greek Ombudsman is competent at each level. The problem is that the recommendations that the Greek Ombudsman makes are not binding, therefore there is a difficulty to ensure its implementation. This constitutes one of the explanations to the failure of some of the cases that the Greek Ombudsman handled.
However, and even though Greece is not proud of these cases, the role of the European Court of Human Rights (ECHR) does have some impact on the Greek government’s attitude, “forcing” the latter to comply with international standards through recent decisions of the Court. The Mss. vs Greece and Belgium case was one example which forced Greece to re-evaluate its legislation and question the Dublin II EU regulation. There has been quite a few cases regarding poor detention conditions of third country nationals as well as problems of asylum procedures, but thanks to upcoming EU regulations, there has been improvement made over the years. Moreover, with the Greek Ombudsman designated as the monitoring mechanism of forced returns of third country nationals, improvement is well on its way, althoughthere is still lots to be done.
Discussion:
The economic crisis has been found to be a common reason which increases the complexity of migration, even more so than it would be in a better economic situation. European guidelines and directives from the Council of Europe have been found very useful to help deal with the current migrant situation. Decisions of the ECHR have also been useful in requiring governments to comply with European standards and legal expectations. Ombudsman institutions are definitely playing a crucial role in monitoring and improving migrants’ rights conditions.
Their recommendations are constructive, and they also serve as tools for international bodies to better understand the migration phenomenon and help resolve the different problems which evolve around it.
Module 2: Ombudsmen communication: the way to reach migrants
Expert: Elena ARCE, Head of Department -Chief of the Migrations and Equality of TreatmentArea, People’s Defender, Spain
The Spanish Ombudsman is an independent institution that provides non-binding and non-jurisdictional supervision. It can make recommendations and suggestions to any administration. It strives to promote migrants’ rights, and is the monitoring mechanism for migration and asylum procedures. The institution endeavours to avoid criminalisation of irregular migrants. The expert explained that its role is somewhat difficult to explain to migrants because the institution is not an NGO and is a State institution, yet independent from the Spanish government.
This ambiguity makes it sometimes difficult to reach out to migrants and to convince them that the Ombudsman is there to protect them regardless of their status (whether it be regular or irregular).The website of the institution, however, makes it more easily accessible, along with an available leaflet that is translated into 20 languages (Romanian, Arabic, etc.). It raises awareness about what human rights are and how the Ombudsman can help. The leaflet includes an envelope free of charge to directly send complaints to the Spanish Ombudsman Institution.The Institution’s contact with various NGOs also constitutes an informal way to reach out to migrants who need help, and to stay aware of what is really happening in the field.
The way the Ombudsman reaches out to migrants is, for example, through unannounced visits, made in detention centres, centres for unaccompanied minors, etc. However, when the visits are done in this way, the challenge remains not to set expectations too high on the part of the migrants and be clear on what the Ombudsman is abletodo, while painting a fair picture of the government and not always pointing it out as bad and wrong. The Ombudsman’s monitoring role is not always to be associated with the idea that the Institution wants to systematically criticise the government’s actions.
Some examples were given in order to illustrate the Ombudsman’s daily activities. While respecting the confidentiality of the places shown in the pictures (no name, no city detail, no date), some cases of detention centres were presented. The cases showed clear violation of migrants’ rights as they were kept in unacceptable conditions. In the first example, migrants had a number written on their shirt so that staff could identify them. Some stayed in small, overcrowded rooms during a very hot summer.Minors were locked in a room only with water while waiting for regional authorities to take over their cases. After the visit, a report was written with recommendations, which were taken into consideration, and necessary changes were made.
In the second example, which is an exception but still occurred, the centre which was visited was hidden. It took the Ombudsman’s team more than two hours to locate the part of the centrein which these minors were kept. The staff members in charge of the centre explained that that room was just for minors under the influence of alcohol or drugs. The room in which they were kept was unhealthy and against all standards. The Spanish Ombudsman made recommendations explaining it was not acceptable and gave them a deadline by which changes had to be made.
The room was redone. In this case, the role of the NGOs was particularly important, and showed how crucial informal contact between Ombudsman and NGOs can be. The relationship the NGOs had developed with those minors encouraged them to send complaints to the Ombudsman, which could then investigate the cases and demand changes.
Discussion:
The participants who intervened in the discussion relating to Module 2 expressed common concernsregarding what was described as the obstacles impeding Ombudsman Institutions to reach out to migrants. Overall, it appears that unannounced visits are efficient although budgets do not allow them to occur as often as they should. Generally, NGOs seem to have a very important role to playin helping to make that connection between migrants and Ombudsman institutions. Another important point mentioned was that relationships should be made and maintained with the staff members of thecentres because they can be a great source of information as well, if relationships are built properlyand according to confidentiality principles.
The control by the European Ombudsman of the European Union’s External Borders Agency (Frontex) and its respect of fundamental rights
Expert: Marta HIRSCH-ZIEMBINSKA, Head ofa Complaints and Inquiries Unit, European Ombudsman
Since the Charter of Fundamental Rights of the EU became a legally binding bill of rights for all EU institutions,bodies and agencies,the European Ombudsman (EO) has decided to use its investigating power to clarify fundamental rights obligations of Frontex. This presentation’s goal was to focus on the specificity of the EO’s procedure and its effectiveness in evaluating Frontex. Frontex is the European Union’s main actor in policing EU borders. It now has new legal obligations, and especially to respect human rights during its operations and the EO’s role is to ensure that the new obligations established by this legislation are applied in practice.
The Frontex investigation was brought about after NGO’s reports (notably Human Rights Watch) pointed out malpractices in Frontex’s functioning regarding human rights issues. The European Ombudsman therefore decided to investigate more about its strategy in practice, its codes of conduct as there are many and it is not clear which are followed, Frontex’s complaint mechanism –if it exists and if yes, is it really independent ?- , and the role which Frontexplays vs.the Member States which take part in its operations. Frontex was given three months (which is the standard deadline) to clarifythe questions asked above. TheAgency answered the EO, although not all answersappeared to be sufficiently detailed. Frontex explained that it was not completely responsible for what occurred as far as human rights violationsat the EU borders becauseit considersitself “a coordinator only”.Subsequently the EO also opened the possibility for public contributions, which should help the EO inhis investigation. When the presentation was given, the investigation was not yet finished, and the results were therefore not finalised.
Discussion:
During the discussion, it was clarified that, as regards the respect for EU law includingthe Charter of Fundamental Rights,the EO’s role is not to control Member States’ national laws, implementation of laws or national administrations because that is the role of theCommission and ultimately the Court of Justice of the European Union.The European Parliament may also deal with petitions in this respect. The EO is there to investigate complaints about maladministration(which may also be a failure to respect fundamental rights) in theactivities of the institutions, bodiesand agencies of the European Union.
The EO can therefore investigate what Frontex does (including procedures like forced returns flights, which occur under the authority of Frontex). Participants were generally happy and relieved to hear and learn more about this investigation of Frontex functioning, because as Ombudsman institutions, they have been dealing with many complaints relating to Frontex’s activities, which needed to be addressed.
Module 3:What impact do Ombudsmen have on public policies relating to migrants?
Expert: Elena ARCE, Head of Department -Chief of the Migrations and Equality of TreatmentArea, People’s Defender, Spain
The presentation took for example the People’s Defender of Spain. Elena ARCE believes Ombudsmen can have an impact on public policy; it nevertheless takes time, effort, common sense and persistence.
In 2011, the Spanish Ombudsman received 24381 complaints, among which 2000 were directly related to migrants issues. However, it is important to read in the data that complaints relating to housing, unemployment, social and health benefits can also be linked to migrants although it is not directly shown.This illustrates in part just how complex migrant issues are.
Another problem concerning migrants is non-removable persons, a matter which to this day remains very taboo although it isvery important. Often due to reasons independent of their own will, returning to the country of origin is not an option. They may have family, economic or social ties in the country of residence.Individuals can remain non-removable for a very long period of time, even years or decades. It is said that Spanish law in place today does not help these people because they do not enter into“normal” migrant categories, although they have been living in Spain for years.These people should have rights, but do not and this problem ought to be addressed. The EU legislation should provide a stronger position on the fundamental rights of this group (rights to education, health, food and housing, and work).
This issue is particularly sensitive today because of the economic crisis. This is where Ombudsmen, and in this case the Spanish Ombudsman, need to intervene in order to remind the Parliament that human rights are more important and need to be respected no matter the political or economic context in which migrants find themselves.Although the European Union has put forthlegislation regarding migrant regulation, it remains under the responsibility of the government to improve migration procedures and regulations as well as conditions for migrants who are already on the territory of the host country.Since 2010, an integration effort has been made in Spain. This is crucial because it recognises that regulation legislation does not equal integration policies and that both need to be considered for migrants to be fully part of their new community.
Additionally, it is important to understand that reports do have an impact on legislation as they raise awareness about issues and put pressure on the government to act upon them. One example which illustrates this point is the Spanish Ombudsman Report on Age Assessment Practices which represented one year of data regarding thesepractices and their consequences on human and children’s rights. This report has often been used by theSpanish Court, which has had a great impact at national level. The Spanish Ombudsman also has the power to present recommendations directly to the Constitutional Court, which includes another way to implement changes in legislation and public policies.