We translate the letter from the Council of Europe Commissioner for Human Rights

Dear Minister,

As Commissioner for Human Rights of the Council of Europe, my mandate is to promote the effective observance of human rights in all 46 member states of the Council of Europe. To this end, I am committed to dialogue with Member State governments to help them address any shortcomings in their laws and practices. The human rights of refugees, asylum seekers and migrants are a key thematic area of this work. I am therefore writing to you with regard to Decree-Law No. 1/2023 of 2 January 2023, the enactment of which I understand will soon be debated in Parliament. The new Decree provides a regulatory framework for NGO vessels carrying out search and rescue operations at sea. I am concerned that the application of some of these provisions may impede the provision of vital rescue services by NGOs in the central Mediterranean and may therefore be contrary to Italy's obligations under human rights and international law.

In particular, the decree requires rescued vessels to reach the designated port for disembarkation without delay. However, there is a risk that this provision will be applied in such a way as to prevent effective search and rescue by NGO vessels. As has already happened in practice, the provision prevents NGOs from carrying out multiple rescues at sea, forcing them to ignore other requests in the area if they already have people on board, even if they still have the capacity to carry out another rescue. By complying with this provision, NGO captains would effectively be in breach of their rescue obligations under international law.

I also note with concern that NGO vessels have been assigned distant safe harbours in central and northern Italy. This prolongs the suffering of those rescued at sea and unduly delays the provision of adequate assistance to meet their basic needs. It unnecessarily exposes those on board to the potential dangers of adverse weather conditions. A prolonged stay on board tends to lead to a rapid deterioration in the health of all those involved and risks exacerbating the condition of the most vulnerable on board.

I understand that the adoption of this practice stems from the intention to ensure a better redistribution of migrants and asylum seekers within the country. However, this objective could be achieved by quickly disembarking the rescued persons and ensuring that alternative procedures are put in place to redistribute them to other parts of the country.

In addition, the vagueness of the term 'compliance with technical requirements' in the text of the decree could lead to lengthy and repeated safety inspections of NGO vessels, preventing them from resuming their rescue operations. As a member state of the Council of Europe, Italy is obliged to provide a safe and favourable environment for human rights defenders, including NGOs that save lives at sea. If problems arise in complying with technical or administrative requirements, they must be resolved in a spirit of cooperation so that the vessel can resume its operations as soon as possible.

Dunja Mijatović, source: Wikipedia

NGOs have provided valuable assistance to Member States in saving lives at sea by reducing government search and rescue operations at sea. The implementation of the decree, together with the practice of designating distant safe havens, will have the predictable consequence of depriving the most deadly migration route of the life-saving assistance provided by NGOs. I therefore urge your government to consider withdrawing the decree or, alternatively, to incorporate any necessary amendments in the upcoming parliamentary debate to ensure that the text fully complies with Italy's obligations under human rights and international law.

I would like to draw your attention to my Recommendation on the Central Mediterranean and its follow-up report, in which I stressed that States have clear obligations with regard to persons in distress at sea, which may include intervening or coordinating rescue operations beyond their SAR zone, if necessary. I also reiterated that a rescue operation can only be considered completed when rapid disembarkation in a 'safe port' is guaranteed and that the 'safety' of the destination must be in accordance with international human rights and refugee law.

The Memorandum of Understanding with the Libyan Government of National Accord, which will be automatically renewed on 2 February, plays a central role in facilitating the interception of refugees, asylum seekers and migrants at sea and their subsequent return to Libya. Despite ample evidence of the serious human rights violations suffered by refugees, asylum seekers and migrants in Libya, no concrete action has yet been taken to address this issue. I would therefore like to take this opportunity to reiterate my call for the suspension of cooperation with the Libyan Government on interceptions at sea and to make any future cooperation with third countries in the field of migration conditional on comprehensive human rights guarantees, as set out in my recommendation mentioned above.

Finally, I would like to receive information on the allegations raised by recent media reports concerning the existence of a practice of returning people from Italy to Greece on commercial vessels, where they are allegedly deprived of their liberty in very worrying conditions and without having had the opportunity to apply for asylum in Italy. I recall that in 2014, in the case of Sharifi and others v Italy and Greece, the European Court of Human Rights found several violations of the European Convention on Human Rights in relation to practices that appear to be very similar to those recently denounced. As I explained in my Recommendation on ending refoulement in Europe, the individual assessment of the circumstances of each person arriving at the border remains a crucial tool to ensure effective protection against refoulement and to prevent collective expulsions.

Last but not least, I commend the extraordinary efforts made by the Italian authorities to save lives at sea. I am also aware of the significant challenges faced by countries like Italy, which are at the forefront of migratory movements towards Europe. I assure you that I will continue to call for greater solidarity from the other member states of the Council of Europe, including through shared responsibility for adequate rescue capacity and resettlement of rescued persons.

I look forward to receiving your reply and to engaging in a constructive dialogue on these and other relevant issues with a view to strengthening respect for human rights in Italy, in a spirit of sincere cooperation.

Dunja Mijatović