11. No European monitoring authority has involved the press in a return operation, while
only in some countries are there collaborations with NGOs or associations active in civil
society (e.g. Sweden).
On the basis of what has emerged, it is possible to put forward some considerations, starting
from which we invite all the European teams involved to discuss internally and with European
colleagues, to formulate shared and common best practices.
First of all, answers to the questionnaire clearly indicate the attention shown by European
monitors in checking the legality of coercion measures employed by escorts, a critical point
repeatedly highlighted.
On this point it is worth recalling that Article 8 of the so-called Return Directive (Directive
2008/115/EC) provides for the adoption of “all necessary measures” to carry out removal of
illegally staying third-country nationals, so also, as a last resort, coercive measures (paragraph
4), in the event of resistance to the execution of the decision on the part of the person to be
returned.
Such measures must be “proportionate” and not exceed “reasonable force”.
Furthermore, Article 8 states that “coercive measures shall be implemented as provided
for in national legislation and in accordance with fundamental rights and with due
respect for the dignity and physical integrity of the third-country national concerned.”
Therefore, the risk of abuse and of potential harm to the rights and dignity of the returnees
requires the adoption, as provided for by the Directive in Article 8 §6, of monitoring
mechanisms by the Member States, which must pursue and guarantee, by all possible means,
controls on the legality of the measures taken by the competent authorities. On this point,
investing in the training of escorts, in which staff members from national and European
guarantors are also involved, is a tool to be considered (see the Italian case).
With reference to the possibility of monitoring the last phase of the return operations, i.e.
the handover of foreign citizens to the authorities of the country of origin, the forms of
collaboration experimented by the United Kingdom, Spain and Switzerland with some
guarantors present in third countries that are the destination of flights departing from
these 3 countries are particularly interesting. These agreements allow the European monitor
to notify the monitors of the destination country of any monitored transfer, so that the control
of compliance with the rights of the returnees may also take place in the last phase of the return
which, for territorial jurisdiction, is no longer competence of the European monitor.
Another important aspect is related to the timeliness of the notice the returnees are given
of their transfer.
On this point, it has emerged that the fact of receiving adequate notice must be protected as a
fundamental right: the foreign citizen to be repatriated must in fact have sufficient notice time
to inform relatives and friends of their departure, to arrange their baggage with personal
belongings and possibly to be able to carry out an interview with a psychologist or a social
worker (especially in the case of families – as is the case in Belgium).
The absence of adequate notice, which is a generally widespread practice and which is often
justified for “security” reasons, risks violating the principle of non-refoulement, since it does not
offer guarantees regarding the possibility of timely intervention by lawyers and also for the
purpose of a real-time update of the files of the persons subjected to the procedure.
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