CONF/EXP/2019/1

2 July 2019

Study: NGO activities, particularly humanitarian efforts targeting refugees and other migrants, in the context of changing criminal law approaches or provisions in CoE Member States

QUESTIONNAIRE ON STATE PRACTICE

Please send your responses by email to cf16045@essex.ac.uk before 2 September 2019.

Contact: Carla Ferstman, Member of the Expert Council on NGO Law [cf16045@essex.ac.uk]

Background

The Expert Council on NGO Law is currently preparing a thematic study on the impact on NGO activities, particularly humanitarian efforts targeting refugees and other migrants, of changing criminal law approaches or provisions in CoE Member States.

The thematic study will assess the standards applicable to CoE States, and the extent to which any law that criminalises NGO activity and the enforcement of such law impacts on legitimate NGO activity.

The practice once gathered will be assessed in the light of the applicable European standards governing freedom of association and the rights of NGOs and, in the light of this, guidelines will be developed to help States ensure that their law and practice when taking action against trafficking, smuggling and border control is consistent with those standards.

Instructions for those supplying information

We are seeking information from an array of sources in line with the questions set out below. We encourage lawyers, case workers, NGOs and others with information to communicate that information, so that the report can benefit from the widest array of inputs. We are also seeking information from Member States relating to relevant legislation and current practices.

We recognise that not all questions will be relevant to each Member State, nor will each person reviewing this questionnaire have answers to each question. We encourage those consulting the questionnaire to answer all questions which are relevant to their circumstances and within their expertise.

If you are referring to official documentation (legislation, bills, parliamentary reports, jurisprudence) we would appreciate links to the official texts.

1.    Contact details

Please specify your name, title, affiliation as well as contact details [email, telephone, postal address, other]. Please specify if you would like the information you supply or your personal details to remain confidential. Please also specify if you would be happy to be contacted for any follow-up information.

2. Legal framework [actual and draft (bill) legislation and reforms to existing legislation; parliamentary debates about legislation]

1      Domestic anti-trafficking and anti- smuggling legislation [for EU States – which States have implemented an exception to EU Directive 2002/90/EC for humanitarian assistance; how is it framed; for non-EU States, please supply any domestic legislation criminalising the facilitation of unauthorised entry/transit/residence]

2      Legislation regulating the operation of nongovernmental organisations[In particular, please explain what legislation applies to regulate the comportment of NGOs; what is the consequence for an NGO which acts in contravention of domestic law or policy]

3      Broad criminal law/constitutional law question – what are the criteria used by the State to determine whether a particular conduct (act or omission) should be criminalised? For instance, in some States, the criminal law is only used to regulate behaviour if no lesser means of control is possible. Where, if anywhere, is this criteria set out? Does it appear in the constitution? Has it been the subject of litigation or parliamentary debate? How clear is it?

4      Criminal law legislation (Criminal Code; Code of Criminal Procedure)

consider i) generally whether there is a law prohibiting humanitarian assistance to migrants and ii) consider particularly whether/how the law applies to staff of organisations and/or to the organisation itself; iii) what sentences apply to persons (or organisations found guilty?); iv) Technically, is it possible under the domestic law of the State to prosecute an organisation?

5      Administrative law or regulatory frameworks – Has administrative law or regulatory frameworks (e.g., Health and Safety Legislation; Safeguarding regulations etc.) been used to stop, impede or prevent NGOs from providing assistance or support to migrants and refugees? In what ways?

6      Migration and refugee law – there is a perception that any application of the criminal law to persons or organization assisting migrants and/or refugees stems from the criminalisation of the migrants/refugees themselves – how does the law deal with people who come and cross the border without a permit? For instance, are persons who enter a country without a permit deemed to be “illegal” entrants? If an individual or an organisation helps such an illegal entrant, does this constitute aiding and abetting under the criminal law?

7      Freedom of Association and Expression – to what extent does domestic law protect against individuals and organisations who express support for migrants and refugees or join forces/meet to discuss such protection etc – how does this interact with the criminalisation?

8      Law of the Sea – (relevant for countries bordering international waters or whose vessels operate on the High Seas) – how are law of the sea provisions incorporated into domestic law; how does the obligation to assist people in distress, translate into domestic law; how does it interact with anti-trafficking/smuggling and refugee law. 

3. Case examples

Please provide information on any cases, or patterns of cases, that you are aware of, which relate to the criminalisation of NGO activities in the context of humanitarian efforts targeting refugees and other migrants.

Please provide information on, inter alia:

-       The charge or regulatory infraction

-       The factual context in which the employee or NGO was charged

-       At the pre-trial stage, what happened? Was anyone detained? For how long? Was property, equipment or data seized or destroyed?

-       Procedural issues associated with how the case was handled

-       The outcome of the case – the court decision; the sentence or other/additional penalty/fine/sanction;

-       The short-term impact [on the migrants who were in the process of being assisted; on the accused persons (who may be NGO employees or more often, volunteers or temporary contractors with very limited employment or other protections from the NGO) and for the organizations;

-       The longer term impact on the individuals concerned and the NGOs

 

Also consider whether criminalisation is used as a threat or whether it is something that regularly leads to prosecutions. If criminalisation is more of a threat – what are the types of consequences short of prosecution (seizure; forced stoppage of work; forced use of armed police during search and refugee operations; general hostile environment…)

Please consider:

-       any criminal cases against civil society workers (individuals)

-          Criminal cases against the organizations themselves

-          Administrative or related proceedings against the organizations in lieu of or following criminal proceedings.

4. Cases involving vigilante acts against NGOs who assist migrants (violence; vandalism; threats…) or relates acts which may amount to “Hate Crimes”

-          Please provide any factual information on any known cases

-          Please explain the extent to which the State has a law against that kind of behaviour (nuisance; criminal law); are there any known instances in which vigilante attacks have been reprimanded (criminal/nuisance…)

5. Coverage by media, IGO or NGO policy reports, governments/parliaments

Please provide any links to media, intergovernmental and NGO policy reports, as well as government statements and reports.

 

6. Additional information?

Please provide any additional factual information relevant to this study, not already provided above.

Please provide any reflections on the context in your particular country, the reason(s) for the resort to criminalisation and any recommendations about how to resolve the underlying problems.

Thank you for your time!