HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

a view to deportation or extradition ”. 43 The para. 4 then establishes a right to have the lawfulness of the detention decided by a court. According to the Art. 6 of the Screening regulation, the persons enumerated in the Art. 5(1) and 5(2) are not authorised to enter the territory of a Member State. The persons listed in Art. 5 are third-country nationals regardless of whether they made an application for international protection. Thus, even if these persons have made an application and they are in fact in the process of obtaining international protection, legally they are not within the territory of the state and they must remain in the designated area having their personal liberty restricted. As mentioned above asylum seekers can be detained when they attempt an unauthorised entry. This implies that applying for international protection can be perceived as an attempt at unauthorized entry due to the fiction that the applicant has not yet entered the territory and is detained near the external border. More concerning is the lack of guaranteed judicial review in the Screening regulation. The provision regarding the monitoring mechanism operates with the word “investigation” of the alleged violation of fundamental rights. Yet it does not offer more detailed information on the character of the investigative authority. According to Art. 5(4) of the Charter, the lawfulness of the detention is supposed to be decided by a court. The investigative authority is not required to have the same quality as the court. In case of for example longer screening procedure of a third country national than seven days as provided by the regulation, which court (if any) shall have jurisdiction to review the alleged violation of rights? Since the third country national is legally outside of the country, the option of reviewing a potential violation of fundamental rights, such as detention, especially regarding the question of jurisdiction is ambiguous. Another potential risk of the legal fiction of non-entry is breaching the principle of non-refoulement established in the Convention. 44 Despite provisions ensuring compliance with the principle, 45 the case law of the ECtHR displays several cases of the violation of the principle due to the detrimental use of the legal fiction of non entry. 46 In the case Hirsi Jamaa and Others v. Italy the Italian authorities denied having the jurisdiction over applicants rescued during a sea operation 47 and refused to 43 European Convention on Human Rights [online]. [cit. 2024-08-15]. Available at: https://www.echr. coe.int/documents/d/echr/Archives_1950_Convention_ENG. 44 Convention relating to the Status of Refugees [online]. Art. 31 [cit. 2024-08-15]. Available at: https:// www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-refugees. 45 For example, Art. 3 or para. 27 of the Screening regulation. 46 SODESTORM, Kelly. AN ANALYSIS OF THE FICTION OF NON-ENTRY AS APPEARS IN THE SCREENING REGULATION [online]. Melbourne, September 2022, p. 3 [cit. 2024-08-15]. Available at: https://ecre.org/wp-content/uploads/2022/09/ECRE-Commentary-Fiction-of-Non-Entry September-2022.pdf. 47 Hirsi Jamaa and Others v. Italy, 23 February 2012, Application no. 27765/09 [online]. Para. 65 [cit. 2024-08-15]. Available at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-109231%22]}.

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