Strasbourg, 27 May 2015 CommDH(2015)11 1ST QUARTERLY ACTIVITY REPORT 2015 by Nils Muižnieks Commissioner for Human Rights 1 January to 31 March 2015 Presented to the Committee of Ministers and the Parliamentary Assembly CONTENTS 1. Overview........................................................................................................3 2. Missions and Visits ........................................................................................4 3. Reports and continuous dialogue ................................................................10 4. Themes........................................................................................................13 5. Other Meetings ............................................................................................14 6. Co-operation with national human rights structures ....................................16 7. European Court of Human Rights................................................................16 8. Communication and Information work .........................................................18 9. Next three months........................................................................................21 10. Observations and reflections .......................................................................22 2 1. Overview During the period under review, I was invited to discuss the situation of fundamental rights in the European Union (EU) at hearings in the Danish parliament and the European Parliament, as well as at a conference organised in Brussels by the Centre for European Policy Studies (CEPS). I also participated in the Belgian chairmanship’s High- Level Conference on the “Implementation of the European Convention on Human Rights: Our Shared Responsibility”, which featured interventions on the EU’s accession to the European Convention on Human Rights (ECHR). During country visits to EU member states, I often ponder how the EU could do more to address the human rights shortcomings I encounter. The most serious shortcomings relate to violations of fundamental civil rights enshrined in the ECHR such as the right to life, the prohibition of torture and the lack of effective investigations, as well as the victims’ right of effective access to justice. If one reads the reports of the Committee on the Prevention of Torture (CPT) and the pilot, or repetitive, judgments of the European Court on prison overcrowding and conditions of detention, it becomes clear that such violations continue to occur in a number of EU member states. Moreover, there has been almost no accountability among EU countries for their complicity in violations committed in the context of the CIA’s programme of “extraordinary rendition” and torture carried out at “black sites” from 2003 to 2006. Any EU “Rule of Law Mechanism” or “Copenhagen Commission” should deal with these violations as a matter of priority. The shortcomings I encounter most frequently in my work in EU countries relate to immigration and asylum policies, the situation of Roma, the situation of persons with disabilities, and the rights of the child. I often receive reports of pushbacks of irregular migrants, including asylum seekers, at the external borders of the EU, ill treatment of new arrivals, poor conditions of reception and inadequate integration support. In virtually every country I visit, Roma face systematic discrimination in access to education, housing, health care and employment. They remain frequent victims of virulent anti- Gypsyism and violent hate crimes. In the realm of disability rights, many countries have yet to bring their legal capacity legislation into line with the requirements of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). I see frequent violations of the right to live in the community through placement of persons with intellectual and psycho-social disabilities in large institutions. Children are all too often victims of violence, subjected to treatment as adults in criminal justice matters, and have their best interests ignored in migration and asylum matters. What could the EU do to address these problems? It should first be noted that the EU’s legislative competence on matters relating to human rights is relatively limited. There is no EU acquis, for instance, on freedom of expression or the prohibition of torture. The areas where the EU has the strongest competence are the following: non-discrimination, gender equality, disability rights, data protection, and various aspects of immigration and asylum. Even in these areas a few caveats are in order. The level of protection afforded by EU legislation differs according to the ground of discrimination, with gender, race and ethnicity covered better than sexual orientation, gender identity, age or disability. Issues pertaining to national security are excluded from EU data protection rules. The EU’s obligations in disability rights stem not from a well-developed legislative framework, but from the EU’s ratification of the CRPD. 3 I have repeatedly urged the EU to excel where it has the strongest competence and to enforce its own rules more vigorously. Thus, I am pleased that the European Commission recently began infringement proceedings against a number of countries for longstanding violations of the Racial Equality Directive. During country visits over the last three years, I have frequently visited large psychiatric institutions that were refurbished or even built with the assistance of EU structural funds in violation of CRPD norms. Thus, I am gratified that new safeguards have been introduced by the European Commission to prevent such misuse of EU monies in the current financial period. In migration and asylum-related matters, however, I see few improvements. The focus on border security continues to predominate over human rights concerns, and solidarity among EU countries is woefully lacking. I have also urged partners in the EU to make better use of the excellent work of the EU’s Fundamental Rights Agency, which is a valued partner of my Office. Where the EU’s competence is weak, I would like to see more intense co-operation with the Council of Europe and more systematic recourse to our mechanisms and standards. On issues relating to data protection and immigration/asylum, Council of Europe standards complement the EU acquis and point towards areas where improvements could be made. For instance, Council of Europe standards should inform EU counter-terrorism initiatives that may undermine the right to private life. The Council of Europe’s recommendations to abolish, in law and in practice, migrant children’s detention and to introduce, or effectively apply the existing alternative to migrant detention measures should inform a revision of EU norms, which currently reflect the lowest common denominator and permit lengthy detention. I welcome the growing interest of different EU partners in addressing human rights within the EU. For too long, the EU’s efforts in human rights were limited primarily to relations with candidate countries or recipients of the EU’s generous development assistance. The Council of Europe’s institutions and mechanisms, as well as its standards, can help the EU do better in protecting and promoting the human rights of all persons within the EU. Taxpayers in EU countries, who also contribute to sustaining the Council of Europe, deserve the benefits of a symbiotic EU-Council of Europe relationship. 2. Missions and Visits Visit to Spain The Commissioner visited Melilla and Madrid from 13 to 16 January in order to discuss issues pertaining to the human rights of migrants, refugees and asylum seekers, in particular in Ceuta and Melilla, Spain’s two exclaves in Northern Africa. The Commissioner first went to Melilla, where he held meetings with the Government’s Delegate, Mr Abdelmalik El Barkani and the President of the city, Mr Juan José Imbroda Ortiz. He also met with the Head of the Guardia Civil in Melilla, Colonel Ambrosio Martín Villaseñor; the Head of the National Police, Mr José Angel González Jiménez; and representatives of civil society organisations. He went to see the fence surrounding Melilla, which marks the border with Morocco, and visited the check-point of Beni Ansar, where an office to register asylum claims is in operation since November 2014. The 4 Commissioner also visited the Centre for Temporary Stay of Migrants (CETI), where he met with Centre’s Director, Mr Carlos Montero Díaz, other staff members and with persons accommodated in it. In Madrid, the Commissioner met with the Secretary of State for Security, Mr Francisco Martínez Vázquez. He also met with the Ombudsperson, Ms Soledad Becerril Bustamante, the Representative of UNHCR in Spain and civil society representatives. Furthermore, the Commissioner held an exchange of views on 27 January 2015 with members of the Spanish delegation to the Parliamentary Assembly of the Council of Europe on the issues raised during the visit. The main issue raised by the Commissioner during his visit was the draft amendment to the Aliens’ Act aimed at allowing immediate returns of migrants arriving in Ceuta and Melilla. As further detailed in a press release issued at the end of the visit and available on his website, the Commissioner urged the Spanish authorities to ensure that any future legislation fully abides by Spain's international obligations, which include ensuring full access to an effective asylum procedure, providing protection against refoulement and refraining from collective expulsions. He also recalled