The Fake Client: The case that bamboozled the CJEU

Steve Peers

A plucky young lawyer, fighting impossible odds. A big corporation, shamelessly manipulating the system. A vulnerable client, screwed by that same corporation. A slick corporate law firm, smugly carrying out that company’s instructions. And a quirky judge, trying to his or her best to keep order in the courtroom regardless of any shenanigans.

For over twenty years, these have been the core elements of many of John Grisham’s best-selling novels. His characters rarely leave the Southern United States – unless the plot demands a quick, sleazy journey to a Caribbean island. Could they be transplanted to Europe?

Grisham’s book Playing for Pizza is indeed set in Europe. But it’s a sports story, about a disgraced American footballer eating his way through Italy. Instead, we have the recent real life case of ‘Chain’, documented by Irish journalists Liam O’Brien and Frank Shouldice (radio version here; online story here). It contains many of the key elements of a Grisham page-turner – but with some twists worthy of his best books. (Please note that some of the allegations in their story have been disputed).

The story begins with Mr Bogdan Chain, our vulnerable client. In 2009, he began several years’ work for Atlanco Ltd, a Cypriot subsidiary of an Irish recruitment company, Atlanco Rimec – our big corporation. He was posted to several EU countries, as well as Norway, outside the EU but applying EU free movement laws. Working in different EU countries is liable to create complications from the point of view of social security, and there is complex EU legislation intended to address this issue. But it did not apply as intended in Mr. Chain’s case.

His troubles began when the Norwegian government pursued him for unpaid contributions, even though his payslips indicated that those contributions had been deducted from his pay. Then they got worse: he had a heart attack, and became unable to work. He applied to the Polish government for disability pay, which he believed he had qualified for based on his contributions. But like the Norwegians, the Polish authorities said he hadn’t made sufficient contributions – and so denied him benefits.  

So did Mr. Chain go to court to challenge this? Well, he did – and he didn’t. The real Mr. Chain insists that he did not go to court. But a lawsuit against Atlanco Ltd was nonetheless instigated in his name, without his consent or knowledge. Would the case have benefited him, if he had “won” it? It’s hard to know, but in any event it’s not appropriate to bring cases without the “plaintiff’s” consent.

The so-called “Chain” case, concerning the period he worked in Romania, went first to the Cypriot courts, and was then referred to the CJEU. According to the press story, this case was indirectly related to another case then pending in Cyprus, in which Atlanco sued the Cypriot government to let it pay social insurance for its staff in Cyprus, rather than in other EU countries. Companies would prefer to pay social insurance in Cyprus because rates are low. But as a consequence, the contributions into the social security systems in other Member States are reduced; and there’s a risk (manifest in this case) that as a result of such disputes, a company’s employees end up on the hook for contributions which they thought they had made, and are denied benefits which they thought they were entitled to, just when they need them most.  

We don’t have any plucky lawyers in this case, since (according to the press story), documents disclosed to a criminal investigation in Cyprus show that the same law firm was linked to both sides of the “Chain v Atlanco” case (acting for the corporate parent; that law firm denies this). But we do have plucky journalists: O’Brien and Shouldice, who came across the real Mr. Chain when researching the fake case.

That was the first Mr. Chain knew of the case brought in his name. He then informed the CJEU that he had not authorised that legal action. But the quirky judges in the Court went ahead and held a hearing anyway. There was even an Advocate-General’s opinion. By that point, however, the Cypriot authorities, after Mr. Chain had contacted them, had ensured that the case was withdrawn back in Cyprus, and therefore the CJEU too.

Recent Grisham novels have ended ambiguously, with key plot points not resolved. As things stand, that’s the case here too. According to the press story, the Atlanco group of companies has gone bust; the Irish founder of the parent company is counting his money; and the Cypriot government has opened a criminal investigation. To my knowledge, the Belgian authorities have not asked the law firm to clarify its position. And Mr. Chain still has no disability benefits.

Comments

First of all, congratulations to the journalists in this case, for an excellent work of investigative journalism. It’s fortunate that due to their efforts, the dubious nature of these proceedings came to light before the CJEU could give a judgment. But how did this case get so far in the first place?  

My main focus here is the position of the Court of Justice. Was its behaviour in this case appropriate? (I should note that the Court appears to have issued no formal statement. I have asked the press office if it will do so, along with some detailed questions, but so far have had no reply. Suffice it to say that I think it’s a mistake for the Court not to comment when serious questions are raised about the conduct of its proceedings).

In my view, the Court can’t be expected to systematically check the bona fides of the parties in each case referred from national courts. The Court does not have the institutional capacity to do this, and any move to change that would subvert the nature of the preliminary ruling system, which is essentially a national procedure which is temporarily interrupted to ask the CJEU some EU law questions.  It’s the national court’s job to check that proceedings are genuine, and should remain so. Here there was obviously a slip-up in allowing the case to proceed in Cyprus, although it was corrected once the alleged impersonation came to light.

According to the journalists (in private correspondence), the CJEU and the national court had no knowledge of the documents suggesting links between the “opposing” parties in this case, until the criminal proceedings were opened recently. So neither court can be criticised on that score. But should the Court have terminated proceedings once Mr. Chain told them that he didn’t authorise the case to be brought in his name?

In my view, no, for two reasons. First of all, again we have to recall the nature of these proceedings. It’s for the national court to determine whether a case is admissible before it. Mr. Chain was effectively alleging a flaw in the national proceedings, and so the Court was right to refer him to bring a complaint at the national level instead. (The EuObserver story doesn’t mention that the Court suggested he do this, but the journalists have confirmed in private correspondence that it did). 

Secondly, withdrawing the case straight away on the basis of Mr. Chain’s letter would give rise to another type of impersonation risk. To see what I mean by this, take a look at the Philip Morris case pending before the CJEU, in which the big cigarette company is challenging EU legislation on cigarette packaging and composition. An Advocate-General’s opinion in this case is due tomorrow.

It probably wouldn’t take much effort for me to find out the names of the lawyers representing Philip Morris, and to mock up some fake letterhead with a bogus signature at the bottom informing the Court of Justice that “my” client is no longer interested in pursuing this case. Someone might even have tried a stunt like this before. In light of this, it’s quite understandable that the Court would not simply dismiss the case, but wait to hear what the national court had to say.

So was the Court’s response flawless? Not at all. Mr. Chain is clearly not a huge international corporation, with the resources to pay slick corporate law firms who are fully aware of the nuances of the EU judicial system. It’s understandable that he went to the CJEU since the case had been lodged there, and was confused about how to proceed when it referred him to the national court. Keep in mind that this case was not even brought in his own legal system.

Therefore, while the CJEU should not have withdrawn the case immediately after hearing from Mr. Chain, it could have done more than just refer him to the national court. In particular, it should have told the representatives of the parties of his allegations and asked them to comment. Perhaps one or both parties would then have run for the hills, and the Court could have drawn the obvious conclusions from that. The Court of Justice should also have informed the national court of the allegations, since (as I have said already) that court was best placed to examine them, while Mr. Chain was not well placed to contact that court himself. As far as I know, it didn’t do this (this is one of the questions I asked the Court to answer).

Instead, the Court of Justice ploughed full speed ahead with a bogus case, embarrassing itself and wasting time and money. Some might even have darker suspicions about the Court’s integrity. For those reasons, the Court should swiftly issue a public admission and apology, and make the simple reforms I have suggested above.

Unlike the journalists who uncovered this fake case, I wouldn’t say that the Court was ‘complicit’ in this dubious litigation. But I believe the word ‘complacent’ is richly deserved. The EU’s citizens rightly expect better from the Court.

Barnard & Peers: chapter 10

Photo credit: mission-impossible-tom-cruise-disguise-e1285873148814.jpg

Transfer of personal data relating to income between public institutions – the CJEU's judgment in C-201/14 Bara

Marcin Kotula, Legal Officer at the European Commission

The views expressed are purely those of the author and may not in any circumstances be regarded as stating an official position of the European Commission

Background

In case C-201/14, a preliminary reference from the Court of Appeal in Cluj (Romania), the CJEU was asked to examine a transfer of personal data of the applicants from a public institution to another public institution. The applicants were earning income from self-employment. The information about their declared income was transferred from ANAF (National Tax Administration Agency) to CNAS (National Health Insurance Fund). The CNAS then required the applicants to pay the arrears of contributions to the health insurance regime.

The first three questions of the national court focussed on the interpretation of Article 124 TFEU which relates to economic and budgetary policy and to the issue of the privileged access of public institutions to financial markets. They were found by the CJEU to be unrelated to the object of the national proceedings and in consequence inadmissible. The fourth question however dealt more explicitly with the issue of whether the transfer of the applicants' personal data relating to their income complied with the data protection rules. Hence, the CJEU examined that compliance in particular against the background of Articles 6, 7, 10, 11 and 13 of the data protection Directive (Directive 95/46/EC).

Article 6(1) of the Directive is one of the main points of reference in situations when personal data is passed on from one data controller to another and it specifies, in its point b), that personal data cannot be further processed in a way that is incompatible with the purposes for which it was collected. On the other hand, this Article can be restricted by a legislative measure adopted by a Member State pursuant to Article 13 of the Directive.

Articles 10 and 11 of Directive 95/46 describe what information needs to be provided by the data controller (the natural or legal person which determines the means and purposes of the processing of personal data) to the data subject (the identified or identifiable natural person whose data is processed). These two Articles correspond to the different circumstances in which personal data can be collected by the data controller. Whilst Article 10 refers to the information that needs to be provided when the personal data is collected from the data subject him(her)self Article 11(1) covers the situations where the personal data was collected otherwise than from the data subject.

However, the information obligations under Article 11(1) do not apply in situations envisaged in Article 11(2), thus for example when recording or disclosure of the data is expressly laid down by law. In those situations however the Member State must provide appropriate safeguards.

Article 13 of Directive 95/46 is also of particular importance for the issue of the information that needs to be provided to the data subject. This Article defines which rights and obligations under the Directive can be restricted by the legislation of the Member States and for which reasons. The information obligations of the data controller towards the data subject under both Article 10 and Article 11(1) are also among the rights and obligations that can be restricted. In principle, the possible reasons for restricting rights refer to certain public interest objectives. The reasons which appeared the most relevant for the case in question are laid down in Article 13(e) and (f).  Article 13(e) allows the Member States to adopt restrictions when these are necessary to safeguard an important economic or financial interest of a Member State or of the EU, including monetary, budgetary and taxation matters while Article 13(f) permits restrictions when necessary to safeguard monitoring, inspection or a regulatory function that is connected, even occasionally, with the exercise of official authority in for example monetary, budgetary or taxation matters.

The CJEU's analysis

At the beginning of the judgment the CJEU recalled some of its case-law about the basic concepts of data protection law such as the definitions of "personal data" and of "processing". In that part of the judgment it also reiterated the primary importance of Articles 6 and 7 of the Directive which set out the principles of legitimate and fair processing of personal data. The CJEU found that the principle of the fair processing of personal data, enshrined in Article 6, implies that the data subjects need to be informed about the transfer of their personal data from one public institution to another.

The CJEU then turned specifically to the analysis of the requirements of Article 10 and 11 of the Directive. This means that there were two types of processing of personal data which were relevant in this case. On the one hand, it was the transfer of the applicants' income data by the tax administration which collected it. On the other hand, it was the processing of the transferred data by the health insurance fund. Whilst Article 10 is applicable to the first type of processing the second one is covered by Article 11.

In its analysis of Article 10 the CJEU pointed out that under this Article the data subject must be informed about the purposes of the processing for which the personal data are intended. In addition, insofar as it is necessary to guarantee fair processing of the data, the data subject must also be informed about the recipients of the data and about the existence of various rights. Without this information the data subject could not be in a position to exercise the rights that have been set out in Articles 12 (right to access his/her personal data, to request the rectification or erasure of unlawfully processed personal data) and 14 (right to object to the processing in certain circumstances).

The CJEU's assessment on this point led it to conclude that the tax administration did not inform the applicants that their income data would be transferred to the health insurance fund. Whilst it was argued in the proceedings that a Romanian Law requires the authorities and public institutions to transfer to the health insurance fund the data necessary for determining whether a person qualifies as an insured person the CJEU considered that the scope of data that needs to be transferred pursuant to this Law does not cover personal data relating to income. This was so because persons without taxable income also qualify as insured persons. In consequence thus it was found that the Romanian Law in question could not constitute an information which complies with Article 10 of the Directive.

The CJEU then looked into the issue of whether this failure to comply with Article 10 could nevertheless be legalised on the basis of a restriction adopted by Romania pursuant to Article 13 of the Directive.

Out of the Article 13 reasons that could justify restricting the rights and obligations under the Directive the CJEU identified “an important economic or financial interest of a Member State (…) including monetary, budgetary or taxation matters”, i.e. the reason set out in Article 13(e) and  “a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases related to (inter alia) in (e)”, i.e. the reason laid down in Article 13(f) as the ones that might have been applicable to the case in question. The CJEU found however that these two reasons could not legalise the non-compliance with Article 10 of the Directive because the restrictions based on them have to be imposed in the legislation of the Member State. This requirement was not met in the applicants' case given that the Romanian Law, invoked in the proceedings, only envisaged the principle of transfer of personal data relating to income from the authorities, public institutions and other institutions to the health insurance fund. The definition of transferable information and the detailed transfer arrangements were however laid down in a different measure, namely a Protocol agreed between the tax administration and the health insurance. This Protocol was not even officially published. On top of that, the CJEU noted again that data relating to income are not necessary for the determination if a person is insured.

Next, the CJEU scrutinised the processing in question against the requirements of Article 11(1) of the Directive. Under this Article the health insurance fund which received the personal data relating to income would need to inform the applicants that it acts as the data controller of the data in question and about the purposes of the processing of that data. To the extent that it is necessary to guarantee fair processing of the data the health insurance fund would additionally need to inform the applicants in particular about the categories of data concerned.

Since no such information was supplied to the applicants the CJEU examined whether this failure to comply with Article 11(1) of the Directive could be legalised under Article 13 or Article 11(2). The conclusion proved to be identical as the one reached with regard to Article 10.  Already before it became clear that the definition of transferable information and the detailed transfer arrangements were laid down in a Protocol concluded between the two public institutions and not in a legislative measure and therefore the benchmark for applying a restriction on the basis of Article 13 was not met.

The same was said with reference to a possible derogation under Article 11(2). This Article also requires a law for derogating from Article 11(1) which in addition must be accompanied by appropriate safeguards. In the case in question there was no law which included the required elements. Hence the derogation stipulated in Article 11(2) could not apply either.

Comments

In contrast to many other recent CJEU judgments related to personal data protection (Data Retention [Digital Rights Ireland], Google Spain, Safe Harbour [Schrems]) Bara was decided without any specific references to Charter Articles 7 and 8 which deal with the right to private life and the right to the protection of personal data respectively. The issue at stake in Bara seems to have been sufficiently comprehensively addressed already in the provisions of Directive 95/46 itself without the need to look into the Charter for additional elements of interpretation.

In essence, in Bara the CJEU followed its previous case-law on the relation between the data subject's right to access his/her personal data, as laid down in Article 12(a) of Directive 95/46, and the other rights conferred on the data subject in the Directive. Those other rights include inter alia the rights to request erasure, rectification or blocking of the data and to object to the processing of personal data, laid down in Articles 12(b) and 14 respectively. In the CJEU's previous case-law (Rijkeboer, YS and Others (discussed here and here), the latter rights were seen as dependent on the availability of the right of access because without the information about the processing of their personal data and about the various parameters of that processing the data subjects are much less likely to be in a position to exercise any rights. The same logic can be transposed to the information that the data controller is required to provide to the data subject under Articles 10 and 11(1) of the Directive since the type of information specified in those two Articles can also be seen as essential to the exercise of the other rights of the data subject.

The CJEU searched for possible derogations in Articles 13 and 11(2) of the Directive but found that neither of them could justify the non-compliance with the information obligations under Articles 10 and 11(1). As both Article 13 and 11(2) specify that derogations or restrictions can only be imposed by law and not by a measure of a lower status there was no basis for a valid derogation or restriction in the applicants' case. Indeed, the most important parameters of the transfer of the applicants' personal data relating to their income were set out in an administrative arrangement (which was not officially published) concluded between the tax administration agency which collected that data and the health insurance fund to which it was transferred.

Would the situation be different had the restrictions been adopted in a legislative measure, as required in Article 13 of the Directive? On the one hand, the restrictions stipulated in Article 13(e) and (f) seem to be particularly well-suited for the purposes of the exchange of information relating to taxation matters. On the other hand, when analysing the possibility of applying the Article 13 restrictions in this case, the CJEU noted that data relating to income are not part of the personal data necessary for the determination of whether a person is insured. Necessity however is required both for adopting a restriction under Article 13 of the Directive and for processing personal data on a legitimate basis under Article 7. Thus, this sentence of the judgment could either mean that the restriction was simply not necessary in this case or rather that the whole processing of data relating to income by the health insurance fund was not necessary. If the latter meaning is correct an Article 13 restriction could not have applied at all in this case because Article 13 does not constitute a basis for restricting Article 7. In any event, in the Advocate General's opinion it was the task of the national court to verify if the processing of this data by the health insurance fund was necessary.

In its analysis the CJEU relied quite heavily also on the requirement of the fair processing of personal data which is among the data protection principles in Article 6 of the Directive. In paragraph 34 of the Bara judgment the CJEU states that the obligation of a public institution to inform the data subjects about the transfer of their personal data to another public institution derives already from this principle of the fair processing of personal data.

It might be interesting to note that the text adopted by the European Parliament in the first reading of the new Data Protection Regulation specifies what elements must be included in a legislative measure adopted by a Member State (pursuant to Article 21 of the proposed new rules) to restrict rights and obligations under the data protection rules. The new data protection framework, including a list of these elements in Article 21(2), now seems destined for adoption after an agreement on the compromise text was reached between the Commission, the European Parliament and the Council on 15 December and confirmed by the EP LIBE Committee and the Coreper a few days later.

Photo credit: europarl.europa.eu

Latin American implications for immigrant detention in Europe: comparing Celaj and Vélez Loor

Dr Andrea Romano, Research assistant, “Sapienza” University of Rome

Introduction

The Celaj judgement and its controversial relationship with the earlier case law of the Court of Justice on the Returns directive has been persuasively discussed in this blog (see Majcher). This commentary focuses on a brief comparison between that judgment and the Vélez Loor case decided by the Inter-American Court of Human Rights in 2010 (hereinafter IACtHR).

The judgment of the Court of Justice of the European Union in Celaj originated from one of the several preliminary rulings raised by Italian judicial authorities on the Returns Directive. Now, from an Italian immigration law perspective it has to be noted that the Court of Justice – when requested by means of preliminary rulings – has so far considered deprivations of personal liberty of particular gravity as incompatible with the Returns Directive. Whereas this jurisprudence was drawn upon the principle of effectiveness – i.e. not directly upon a human rights rationale – as a matter of fact it contributed to strengthen the fundamental right of immigrants in an irregular situation (El Dridi, Sagor). However, the Court failed to apply a similar scrutiny in the Celaj case, simply because that case concerned a custodial sentence for breach of an entry ban, rather than a sentence for irregular stay on the territory, as in the earlier cases. And it should be borne in mind that the criminal sanction under scrutiny in the El Dridi judgment (an imprisonment between one and four years) was – prior to the 2011 reform, introduced to comply with El Dridi – exactly the same as that provided for an entry ban violation, which has been now declared consistent with the Returns Directive in the Celaj judgment.

Having said that, the Celaj judgement represents an opportunity to explore a different reasoning and different rationales, allowing to problematize migrants’ detention and the deprivation of their personal liberty. It is well known that the ECtHR has so far maintained a quite deferential position as far as national detention measures for irregular migrants are concerned. In particular, the Court has stated in several judgments that it will not apply the non-arbitrary test (which includes a proportional and necessary scrutiny) to situation falling within the scope of Article 5(1)(f) of the Convention, which concerns the detention of irregular migrants (Saadi v. the United Kingdom). Thus, this case-law does not have a significant impact on Celaj ruling, also because it concerns administrative detention and not criminal imprisonment (see Cornelisse).

If one looks outside the European context, the Vélez Loor case decided from the Inter-American Court of Human Rights suggests instead a challenging set of arguments in favour of a human rights approach in the framework of immigrants’ imprisonment for non-compliance with immigration law.

The multifaceted scrutiny of the deprivation of liberty in the Vélez Loor case

This case concerned an Ecuadorian citizen arrested by the police from Panama while being without a residence permit in that country, and deprived of his personal liberty for several months. In particular, in accordance with the law applicable at that time, he was sentenced to a two-year imprisonment on the ground of his breach of a prior deportation order and connected entry ban from the State of Panama (cf art. 67 and art. 37 of the Law Decree no. 16 of 1960; the Law Decree no. 3 of 2008 has eliminated the imprisonment). Therefore, as in the Celaj judgment, the purpose was to punish the “recidivism” of the migrant.

The Vélez Loor judgement seems to be highly relevant for the European context of irregular immigration, both for its outcome and reasoning. To begin with, the Inter-American Court’s consideration on the vulnerability of immigrants in an irregular situation is striking. As other scholars have already remarked, whereas this concept is familiar to the European Court of Human Rights, the reasoning of the Inter-American Court entails a wider scope (see more in detail Dembour, Beduschi): unlike the ECtHR, which dealt with vulnerability in specific cases, the argument of the IACtHR is not restricted to certain foreigners but involves the whole category of irregular migrants.

Quoting a report of the Special Rapporteur of the Economic and Social Council, the Court notes that migrants in an irregular situation are “the most vulnerable to potential or actual violation of their human rights and because of their situation they suffer a greater lack of protection of their rights” (par. 98). In particular, the Court reflected on the cultural prejudices about irregular migrants that lead to establish a nexus between irregularity and criminality, and the likely impunity in case of their human rights violations. Those negative implications of irregularity highlighted by the Inter-American Court might be seriously taken into account by European and national legislators for (at least) two grounds: on the one hand, the Court’s remarks on the equation between irregular migrants and criminals and its “stigma” effect suggests the importance of reducing differentiated criminal treatment; on the other hand, it might represent a strong argument with a view to reduce irregularity by means of regularization initiatives conducted on an individual basis by Member States or even in the EU’s framework.

Against this background, the Court considers the several human right violations that Mr Vélez Loor suffered (including lack of due process, torture, arbitrary detention). Limiting the attention to the imprisonment as a consequence of a prior deportation order and entry ban, the Court articulates a pervasive scrutiny that leads to the declaration of incompatibility with Article 7(3) of the Convention, (establishing that “no one shall be subject to arbitrary arrest or imprisonment”). First, the purpose of the deprivation of personal liberty and its suitability is considered. The Court makes clear that “the purpose of imposing a punitive measure on an immigrant who re-enters a country in an irregular manner subsequent to receiving a deportation order cannot be considered legitimate purpose according to the Convention” (par. 169). In practice, according to the Court, a personal liberty deprivation, if adopted in order to control migration flows, cannot be declared incompatible with the Convention as such. It is inconsistent only when the punitive purpose prevails over the migration control rationale: this occurs when “criminalizing an irregular entry into a country goes beyond the legitimate interest of States to control and regulate illegal immigration and leads to unnecessary detention” (par. 169).

Furthermore, the Court applies a test of necessity and of proportionality. This is particularly relevant for the European context, as the ECtHR has been so far quite reluctant to make use of such kind of scrutiny, as regards the cases in which immigration detention is concerned (see, for an in-depth analysis: Dembour and Cornelisse). The IACtHR founds the detention of the immigrant unnecessary and disproportionate and affirms that “it is essential that States devise a range of alternative measures” (par. 171). Again, this does not imply a general ban of immigrant detentions but hinders “automatic” detentions and lays down a circumstantiated and individualized evaluation of each case, using detention only as extrema ratio.

Implications for Celaj

In line with the jurisprudence of the Court of Justice the imprisonment of an irregular migrant for non-compliance with immigration laws undermines the principle of effectiveness, representing an obstacle to returns migrants. Whereas this has led several Member States to change their legislation – since their standard of protection of migrants’ rights was far below that ensured by the Returns Directive – many scholars have criticized this functional (or “securitarian”) approach of the Court, affirming that it fails to address fundamental rights and confirms the restrictive approach of the Directive. The IACtHR, conversely, offers a quite opposite reading to pre-empt immigration detention, which is bluntly grounded on a human-rights rationale, by taking a far-reaching account of the purpose and the limits of detention.

Now, according to the Italian legislation, the imprisonment for immigrants convicted for an entry ban violation has no direct link with a migration control objective, since it is not imposed with a view to expulsion. By contrast, the imprisonment of the migrant in that case needs to be framed within the more general purposes of criminal sanctions (such as deterrence or rehabilitation of sentenced people). Therefore, the statement of the IACtHR, affirming that a punitive purpose in the application of an immigrant detention represents a violation of the human right to personal liberty, calls for a reflection on the scope and meaning of such a liberty deprivation in the Italian context and suggests to eliminate prison sentences for non-compliance with immigration law.

Furthermore, it should be recalled that in Italy an entry ban violation might imply a rather long-term imprisonment, ranging from one up to four years. Also, the necessity and proportionality scrutiny carried out by the Inter-American Court is particularly instructive in order to consider the suitability of such a long deprivation of the personal liberty.

Conclusion

In the light of the above, the judgement of the Inter-American Court deserves careful attention with a view of exploring new scenarios against the widespread use of criminal sanctions implying migrants’ imprisonment in Europe.

Naturally, it would be naïve and misleading to advocate a bare transposition of this judgment into the Luxembourg jurisprudence, considering the broad differences between the Court of Justice and the IACtHR. However, one cannot underestimate the scope and relevance of the Inter-American Court’s scrutiny for ongoing difficulties raised by the “crimmigration” phenomenon in Europe. It is sufficient, in this sense, to think about the general assumption that tends to equalizes migrants and criminals, the negative consequences on the functioning of the justice (as noted by Majcher) – which are particularly serious in Italy – and the risk of “chain” detentions – i.e. the possibility of migrants suffering administrative detentions after a prison sentence (and vice versa).

The IACtHR articulates a set of far-reaching remarks, criticizing the punitive purpose of prison sentences, applying a necessity and proportionality test to immigrant detention and emphasising the need for States to seek for alternative measures. Those remarks could be interpreted as a meaningful toolkit in the perspective of enhancing the standard of protection of immigrants’ human rights in an irregular situation at national and European level.

Barnard & Peers: chapter 26

Photo: The Inter-American Court of Human Rights in Costa Rica

Photo credit: www.un.org

Zakharov v Russia: Mass Surveillance and the European Court of Human Rights

Lorna Woods, Professor of Internet Law, University of Essex*

Introduction

The European Court of Human Rights has heard numerous challenges to surveillance regimes, both individual and mass surveillance, with mixed results over the years.   Following the Snowden revelations, the question would be whether the ECtHR would take a hard line particularly as regards mass surveillance, given its suggestion in Kennedy that indiscriminate acquisition of vast amounts of data should not be permissible. Other human rights bodies have condemned this sort of practice, as can be seen by the UN Resolution 68/167 the Right to Privacy in the Digital Age. Even within the EU there has been concern as can be seen in cases such as Digital Rights Ireland (discussed here) and more recently in Schrems (discussed here). The Human Rights Court has now begun to answer this question, in the Grand Chamber judgment in Zakharov v. Russia (47143/06), handed down on December 4 2015.

Facts

Zakharov, a publisher and a chairman of an NGO campaigning for media freedom and journalists’ rights, sought to challenge the Russian system for permitting surveillance in the interests of crime prevention and national security. Z claimed that the privacy of his communications across mobile networks was infringed as the Russian State, by virtue of Order No. 70, had required the network operators to install equipment which permitted the Federal Security Service to intercept all telephone communications without prior judicial authorisation.

This facilitated blanket interception of mobile communications. Attempts to challenge this and to ensure that access to communications was restricted to authorised personnel were unsuccessful at national level. The matter was brought before the European Court of Human Rights. He argued that the laws relating to monitoring infringe his right to private life under Article 8; that parts of these laws are not accessible; and that there are no effective remedies (thus also infringing Art. 13 ECHR).

Judgment

The first question was whether the case was admissible. The Court will usually not rule on questions in abstracto, but rather on the application of rules to a particular situation. This makes challenges to the existence of a system, rather than its use, problematic. The Court has long recognised that secret surveillance can give rise to particular features that may justify a different approach. Problematically, there were two lines of case law, one of which required the applicant to show a ‘reasonable likelihood’ that the security services had intercepted the applicant’s communications (Esbester) and which favoured the Government’s position, and the other which suggested the menace provided by a secret surveillance system was sufficient (Klass) and which favoured the applicant.

The Court took the opportunity to try to resolve these potentially conflicting decisions, developing its reasoning in Kennedy. It accepted the principle that legislation can be challenged subject to two conditions: the applicant potentially falls within the scope of the system; and the level of remedies available. This gives the Court a form of decision matrix in which a range of factual circumstances can be assessed. Where there are no effective remedies, the menace argument set out in its ruling in Klass would be accepted.

Crucially, even where there are remedies, an applicant can still challenge the legislation if ‘due to his personal situation, he is potentially at risk of being subjected to such measures’ [para 171]. This requirement of ‘potentially at risk’ seems lower than the ‘reasonable likelihood’ test in the earlier case of Esbester. The conditions were satisfied in this case as it has been recognised that mobile communications fall within ‘private life’ and ‘correspondence’ (see Liberty, para 56, cited here para 173).

This brought the Court to consider whether the intrusion could be justified. Re-iterating the well-established principles that, to be justified, any interference must be in accordance with the law, pursue a legitimate aim listed in Article 8(2) and be necessary in a democratic society, the Court considered each in turn.

The requirement of lawfulness has a double aspect, formal and qualitative. The challenged measure must be based in domestic law, but it must also be accessible to the person concerned and be foreseeable as to its effects (see e.g Rotaru). While these principles are generally applicable to all cases under Article 8 (and applied analogously in other rights, such as Articles 9, 10 and 11 ECHR), the Court noted the specificity of the situation. It stated that:

‘…. domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures’ [para 229].

In this, the Court referred to a long body of jurisprudence relating to surveillance, which recognises the specific nature of the threats that surveillance is used to address. In the earlier case of Kennedy for example, the Court noted that ‘threats to national security may vary in character and may be unanticipated or difficult to define in advance’ [para 159].

While the precision required of national law might be lower than the normal standard, the risk of abuse and arbitrariness are clear, so the exercise of any discretion must be laid down by law both as to its scope and the manner of its exercise. It stated that ‘it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power’ [para 247]. Here, the Court noted that prior judicial authorisation was an important safeguard [para 249]. The Court gave examples of minimum safeguards:

§  The nature of offences which may give rise to an interception order

§  A definition of the categories of people liable to have their telephones tapped

§  A limit on the duration of telephone tapping

§  Protections and procedures for use, storage and examination of resulting data

§  Safeguards relating to the communication of data to third parties

§  Circumstances in which data/recordings must be erased/destroyed (para 231)

§  the equipment installed by the secret services keeps no logs or records of intercepted communication, which coupled with the direct access rendered any supervisory arrangements incapable of detecting unlawful interceptions

§  the emergency procedure provided for in Russian law, which enables interception without judicial authorization, does not provide sufficient safeguards against abuse.

The Court then considered the principles for assessing whether the intrusion was ‘necessary in a democratic society’, highlighting the tension between the needs to protect society and the consequences of that society of the measures taken to protect it. The Court emphasised that it must be satisfied that there are adequate and effective guarantees against abuse.

In this oversight mechanisms are central, especially where individuals will not – given the secret and therefore unknowable nature of surveillance – be in a position to protect their own rights. The court’s preference is to entrust supervisory control to a judge. For an individual to be able to challenge surveillance retrospectively, affected individuals need either to be informed about surveillance or for individuals to be able to bring challenges on the basis of a suspicion that surveillance has taken place.

Russian legislation lacks clarity concerning the categories of people liable to have their phones tapped, specifically through the blurring of witnesses with suspects and the fact that the security services have a very wide discretion. The provisions regarding discontinuation of surveillance are omitted in the case of the security services. The provisions regarding the storage and destruction of data allow for the retention of data which is clearly irrelevant; and as regards those charged with a criminal offence is unclear as to what happens to the material after the trial.

Notably, the domestic courts do not verify whether there is a reasonable suspicion against the person in respect of whose communications the security services have requested interception be permitted. Further, there is little assessment of whether the interception is necessary or justified: in practice it seems that the courts accept a mere reference to national security issues as being sufficient.

The details of the authorisation are also not specified, so authorisations have been granted without specifying – for example – the numbers to be interception. The Russian system, which at a technical level allows direct access, without the police and security services having to show an authorisation is particularly prone to abuse. The Court determined that the supervisory bodies were not sufficiently independent. Any effectiveness of the remedies available to challenge interception of communications is undermined by the fact that they are available only to persons who are able to submit proof of interception, knowledge and evidence of which is hard if not impossible to come by.

Comments

The Court could be seen as emphasising in its judgment by repeated reference to its earlier extensive case law on surveillance that there is nothing new here. Conversely, it could be argued that Zakharov is a Grand Chamber judgment which operates to reaffirm and highlight points made in previous judgments about the dangers of surveillance and the risk of abuse. The timing is also significant, particularly from a UK perspective. Zakharov was handed down as the draft Investigatory Powers Bill was published. Cases against the UK are pending at Strasbourg, while it follows the ECJ’s ruling in Schrems, with Davis (along with the Swedish Tele2 reference), querying whether the Digital Rights ruling applies to national data retention schemes, now pending before the ECJ (on that issue, see discussion here). The ECtHR noted the Digital Rights Ireland case in its summary of applicable law.

In setting out its framework for decisions, the Court’s requirement of ‘potentially at risk’ even when remedies are available seems lower than the ‘reasonable likelihood’ test in Esbester. The Court’s concern relates to ‘the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court’ [para 171]. This broad approach to standing is, as noted by Judge Dedon’s separate but concurring opinion, in marked contrast to the approach of the United States Supreme Court in Clapper where that court ‘failed to take a step forward’ (Opinion, section 4).

The reassessment of ‘victim status’ simultaneously determines standing, the question of the applicability of Article 8 and the question of whether there has been an infringement of that right. The abstract nature of the review then means that a lot falls on the determination of ‘in accordance with the law’ and consequently the question of whether the measures (rather than individual applications) are necessary in a democratic society. The leads to a close review of the system itself and the safeguards built in. Indeed, it is noteworthy that the Court did not just look at the provisions of Russian law, but also considered how they were applied in practice.

The Court seemed particularly sceptical about broadly determined definitions in the context of ‘national, military, economic or ecological security’ which confer ‘almost unlimited degree of discretion’ [para 248]. Although the system required prior judicial authorisation (noted para 259], in this case it was not sufficient counter to the breadth of the powers. So, prior judicial authorisation will not be a ‘get out of gaol free’ card for surveillance systems. There must be real oversight by the relevant authorities.

Further, the Court emphasised the need for the identification of triggering factor(s) for interception of communications, as otherwise this will lead to overbroad discretion [para 248]. Moreover, the Court stated that the national authorisation authorities must be capable of ‘verifying the existence of a reasonable suspicion against the person concerned’ [260-2], which in the context of technological access to mass communications might be difficult to satisfy. The Court also required that specific individuals or premises be identified. If it applies the same principles to mass surveillance currently operated in other European states, many systems might be hard to justify.

A further point to note relates to the technical means by which the interception was carried out. The Court was particularly critical of a system which allows the security services and the police the means to have direct access to all communications. It noted that ‘their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider’ [para 268], thereby undermining any protections provided by the prior authorisation system.

Crucially, the police and security services could circumvent the requirement to demonstrate the legality of the interception [para 269]. The problem is exacerbated by the fact that the equipment used does not create a log of the interceptions which again undermines the supervisory authorities’ effectiveness [para 272]. This sort of reasoning could be applied in other circumstances where police and security forces have direct technical means to access content which is not dependent on access via a service provider (e.g. hacking computers and mobiles).

In sum, not only has the Russian system been found wanting in terms of compliance with Article 8, but the Court has drawn its judgment in terms which raised questions about the validity of other systems of mass surveillance.

*Reblogged with permission from the IALS Information Lawand Policy Centre blog

Barnard & Peers: chapter 9

Photo credit: journalofhumanitarianaffairs.blogspot.com

The Reform of Frontex: Saving Schengen at Refugees’ Expense?

Steve Peers

Years ago, shortly before the creation of Frontex (the EU’s border control agency) and the big EU enlargement of 2004, I discussed the future of EU borders policy with a senior German civil servant. Anxious about the forthcoming enlargement of the EU (and, in time, Schengen), his vision was that every Lithuanian or Polish border post would be jointly staffed by a friendly German.

Yesterday’s proposals from the European Commission don’t precisely reproduce that vision – but they do embody the same doubt that Member States (in the south, rather than the east) can be fully trusted to patrol the external border. Given that Frontex has been created in the meantime, it’s the agency itself – flanked by reserves from national border agencies – which would be sent in to help patrol the borders of Member States, albeit only in certain cases.

This is only one of a batch of proposals made yesterday. I’ll sum them all up, but focus on this one, as it’s the most important. Overall, though, the proposals are flawed, in two contradictory ways: they simultaneously seek to do too much in the area of border controls (where the Frontex proposal exceeds EU powers and is politically unprincipled) and too little in the area of asylum (since there is no significant attempt to address humanitarian or protection needs within the EU). In short, they seek to save the Schengen system, at the expense of refugees.

Overview

There’s a Commission communication issued yesterday which tries to sum up all the new proposals. But in an even smaller nutshell, here’s what the Commission has tabled. The flagship proposal is a Regulation which would replace the existing Frontex legislation, creating a new ‘European Border and Coast Guard’ (EBCG) consisting of national border guards plus the agency.  This is accompanied by two proposals for minor consequential amendments to the Regulations establishing the EU’s Fisheries Control Agency and Maritime Safety Agency, whose work would be coordinated with the EBCG.

Next, an amendment to the Schengen Borders Code would increase checks at the external borders on EU citizens and, to some extent, non-EU citizens, for security purposes. A fifth proposed Regulation attempts to make expulsion and readmission more effective, by creating a uniform document to be used during removals of irregular migrants to their country of origin.  

There are non-binding measures on border control issues too. The Commission has adopted a Handbook for use operating the EU’s ‘Eurosur’ system of maritime surveillance. It has also released its latest regular report on the Schengen system in practice.

In the area of asylum, there’s only one proposal for a binding measure: a Decision which would exempt Sweden from the EU’s system of relocation of asylum-seekers (which I previously discussed here), for a period of one year. There’s a non-binding Commission Recommendation for a voluntary humanitarian admission programme of refugees from Turkey. Finally, there are Commission reports on the operation of the ‘hotspots’ for immigration control in Greece and Italy, and on the application of the recent plan to manage asylum and migration flows coming through the Western Balkans.

The new European Border and Coast Guard

As noted already, the proposal would replace the existing legislation establishing Frontex, which was first adopted in 2004, then amended in 2007 and 2011. (I previously produced a codified text of the Regulation – see here). To compare it with the text of the rules it replaces, see the Annex to the proposal. There would be no change to the separate legislation, adopted in 2014, which regulates Frontex actions as regards maritime surveillance (see my comments on that law here).

It should be emphasised that the legislation would not apply to the UK or Ireland, because they don’t participate fully in Frontex. In fact, according to CJEU case law, they can’t participate fully in Frontex unless they join the Schengen system fully – which is hardly likely, to say the least (it would require a referendum in the UK). However, the current loose cooperation between Frontex, the UK and Ireland would be retained, particularly for joint expulsions.

These new rules would – if agreed – significantly transform the status and role of Frontex. I won’t examine every detail for now (I might come back to the finer points during or at the end of the negotiations). Rather, my focus here is on the key aspects of the proposal. Keep in mind that this proposal is far from a ‘done deal’, since it has to be approved by a qualified majority in the Council (the UK and Ireland don’t have a vote, due to their opt-out) as well as the European Parliament. Already press stories suggest that many Member States oppose some key features of the proposal.

The first key feature of the law is the relationship between Frontex and national border forces. At present, the current Regulation states that ‘the responsibility for the control and surveillance of the external borders lies with the Member States’. Frontex is merely tasked with the ‘coordination’ of national forces.

But the proposed Regulation would, in effect, promote Frontex from the job of tea lady to the role of chief executive officer. The new law would not just upgrade the EU agency itself, but create a ‘European Border and Coast Guard’ consisting of national forces and the Agency. The Agency will adopt an ‘operational and technical strategy for the European integrated border control management’. National authorities then adopt their own strategies, but they must be ‘coherent’ with the Agency’s strategy. To put the strategy into effect, the Agency will not only be ‘reinforcing, assessing and coordinating’ national forces, but also taking control of them when Member States are not able to do so effectively.

The current tasks of Frontex – training, risk analysis, research, operational support, border surveillance, and support for expulsions – would all be retained and considerably enhanced. For instance, Frontex would have powers to send liaison officers to Member States, to check the ‘vulnerability’ of external border controls, to create a ‘return office’, and to gather and analyse more personal data. It would also have powers to send staff to third countries to participate in operations, not just (as at present) liaison officers. It would have more staff and funding, as well as reserve forces from Member States to call upon for border control or joint return operations. Most significantly, it would be able to send forces to an external border, in certain cases, without a Member State’s consent.

Is this power compatible with the limits on the powers of the EU? Article 72 TFEU states that the Justice and Home Affairs (JHA) Title of the Treaty ‘shall not affect the exercises of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’. This Article must apply to border control as well as policing, since there was an equivalent clause in the border controls and immigration Title of the Treaty before it was merged with the policing rules by the Treaty of Lisbon. It obviously does not rob the EU of all power to adopt laws regulating borders, since Article 77 TFEU goes on to confer powers to adopt laws on ‘the checks to which persons crossing external borders are subject’ and which are ‘necessary for the gradual establishment of an integrated management system for external borders’.

But the JHA Title specifically restricts EU powers regarding intelligence agencies, and bans coercive powers for Europol (the EU police agency) and prosecutorial powers for Eurojust (the EU prosecutors’ agency). In my view these restrictions are particular applications of the general rule set out in Article 72, which must mean that while the EU can establish rules on border controls and regulate how Member States’ authorities implement them, it cannot itself replace Member States’ powers of coercion or control, or require Member States to carry out a particular operation.  This is consistent with Article 4(2) TEU, which requires the EU to respect Member States’ ‘essential state functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding internal security’, and with the requirement that any common EU defence would have to be agreed unanimously and ratified by national parliaments.

So the EU does not have the powers to send Frontex or its reserve forces to other Member States without their consent, or to require Member States to deploy those reserve forces without their consent either. Moreover, this is politically problematic for many Member States, who have historic concerns about foreign forces coming on to their territory without consent, stemming from the Cold War, the Second World War, and earlier history besides. While Frontex and its reserves should not be regarded as an ‘army’, due to their limited size and functions, they will nonetheless be perceived as such. So this aspect of the proposals is not only legally suspect, but politically ill-judged.

What to make of Frontex’s other enhanced powers, which Member States are rather more likely to accept? The key issue here is the accountability of Frontex for human rights abuses. The agency has fought a long battle with the EU Ombudsman to evade any accountability for individual cases, but it would finally lose that war, if this proposal is accepted. Individuals (or someone acting on their behalf) could make a complaint about human rights abuses, but it would be rejected if it was ‘anonymous, malicious, frivolous, vexatious, hypothetical or inaccurate’. Each complaint would go through the Frontex Fundamental Rights Officer, who would decide on admissibility and then either forward the complaint to the Frontex Executive Director or a national border force. If the complaint is well-founded it will be followed up, possibly by disciplinary action.

However, the proposed process is inadequate. The Executive Director, who will decide on the merits of admissible claims, is obviously not independent of Frontex. There is no reference to a remedy if the complainant believes that his or his complaint has been wrongly rejected as inadmissible or not well-founded. Even where Frontex considers the complaint well-founded, the remedies are ineffective: there is no reference to damages, or a possible criminal prosecution in the most outrageous cases. Furthermore, the new rules are limited in scope, as they do not apply to national border guards, who are responsible for alleged cases of illegal push-backs and assaults upon migrants. To address this, the other proposals released yesterday should be amended to require Member States to hold independent investigations with effective remedies in any case where national border guards are alleged to have acted in breach of fundamental rights.  

There is also a need for specific rules regulating Frontex (and national authorities’) action as regards the ‘hotspots’ for migrants at external borders, to clarify that they are not making decisions on the merits of asylum applications or issuing return decisions, and that only national authorities can make such decisions with full respect for the safeguards and content of EU and national law. (For more on the lack of clarity regarding the ‘hotspots’, see Frances’ Webber’s analysis here).

Other new measures

The most significant other new measure is the proposal for changes to the Schengen Borders Code. At present (see codified text here), Member States must check EU citizens at the external borders (either on entry or exit), to ensure that they hold an EU Member State’s passport which is not registered as lost or stolen. But there is no obligation to check them in security databases, except on a ‘non-systematic basis’. As for non-EU citizens, they must be more thoroughly checked on entry, including the use of security databases, but on exit the consultation is only optional, and security checks need only be carried out ‘wherever possible’.

Both sets of rules would be amended by the new proposal. EU citizens would have to be checked in security databases, both on entry and exit. But if this ‘would have a disproportionate impact on the flow of traffic’ at land and sea borders, Member States could decide to carry out such checks on a ‘targeted’ basis. There is no such derogation for air borders, which will also be subject to separate legislation (recently agreed in principle) concerning the collection of passenger records (Member States will also apply this law to internal Schengen flights). Also, the enhanced border checks won’t be recorded as such in a database, although that would happen in future if recent plans to include EU citizens in the future ‘smart borders’ rules are put into effect. As for non-EU citizens, the current derogation relating to exit will be abolished, and there will always have to be a check in security databases, regardless of any disproportionate impact on traffic.

So overall, checks on EU citizens in security databases would no longer be the exception to the rule (as at present); they would be the rule – subject to exceptions. The exceptions are relatively limited and the proposal does not accept that pressure at air borders could also be ‘disproportionate’. Surely that is a possibility, since if checks add several seconds each to a check of hundreds of disembarking passengers, a back-up could swiftly ensue. Given that data on air passenger movements will soon be recorded anyway, and that the Schengen Information System can’t be used to deny entry to EU citizens, the only practical use for the new rules would be in catching someone who was meant to be arrested, perhaps on the basis of a European Arrest Warrant, or who should be placed under surveillance. But in the latter case it might be awkward to arrange for the surveillance to start without tipping off the person concerned that it’s happening. The proposal might prove useful in detecting people subject to potential arrest due to suspicion of receiving terrorist training (see the separate recent proposal on this point), but is it really necessary for that purpose that it apply at all air borders?

Overall, it may be questionable whether any increase in security that may result from this proposal is proportionate to its impact on passenger movements. There would be a stronger case to amend the Borders Code to allow Member States to check certain flights or border crossings systematically following a risk assessment. This may give rise to concerns about discrimination, but there are already distinctions based on nationality as to who needs a visa, and it would have to be specified that all those on the particular flight must be checked – not just those who ‘appear Muslim’. Checks on all flights could only be justified if it were clear that 'foreign fighters' were returning to the EU via other countries too.  

As for the other proposals, the Regulation on a standard travel document for expulsion would not change the substantive rules on expulsion; time will tell if it leads to non-EU countries accepting more expelled persons.

The real problem is with the lack of ambition of the asylum measures. As noted above, the only binding measure suggested yesterday would exempt Sweden from the EU’s relocation rules. This is largely a cosmetic gesture, since only a tiny fraction of the 160,000 who were meant to be relocated – which anyway is not a huge proportion of those entering Greece and Italy – have in fact been relocated. In the meantime, the capacity of Greece and other States to register migrants, process asylum applications, and ensure basic living conditions for the persons concerned is clearly under immense strain.

What the EU really needs is a new strategy to deal with these protection and humanitarian needs. Is there anything it can do to make the relocation programme work? Failing that, can it assist Member States to process asylum applications, or do more than it is doing to ensure basic living conditions are satisfied? Why the focus on empowering Frontex, and no parallel attempt to empower the EU’s asylum support agency to play a greater role to address some or all of these issues?

Furthermore, pending a full review of the EU’s Dublin system (to be completed early next year), the Commission could at least have issued a recommendation to Member States on how to apply the existing Dublin rules on family reunion, and to widen the admission of family members to admit siblings, and the relatives of EU citizens or non-EU citizens who are legally resident other than as refugees or asylum-seekers.

As Thomas Spijkerboer and Tamara Last have pointed out, there is no shortage of migration controls in the EU. The death toll of migrants and refugees has built up over the decades in which visa requirements were imposed and carriers were sanctioned for letting those without authorisation get on a flight or a ferry. Bolstering Frontex may have an impact on the management of those who arrive, but solves neither the underlying problems in the country of origin or the huge pressure placed on national asylum systems – or the human misery that accompanies it.

Barnard & Peers: chapter 26

Photo credit: https://nobordersnortheast.wordpress.com/2011/05/03/invitation-anti-frontex-days-of-action-warsaw/