Stefano Zirulia, Lecturer, University of Milano* (main text on ECHR) and Professor Steve Peers (Annex on EU law aspects)
* Stefano Zirulia was involved in the proceedings before the ECHR as counsel for the applicants.
Introduction
On December 15th, 2016, the European Court of Human Rights Grand Chamber delivered its judgment in the case of Khlaifia and Others v. Italy, partially overturning a previous Chamber ruling from September 1st, 2015. This case revolves around immigration detention at Italian borders (including Lampedusa) and the expulsion of foreign nationals from Italy to Tunisia. Occurring in 2011, amidst the Arab Spring’s aftermath, the case raises questions relevant to the ongoing refugee crisis and its management by the EU and its Member States.
1. The Facts
The case involves three Tunisian nationals who, like many migrants, attempted to reach Europe by crossing the Mediterranean Sea from North Africa to Italy on makeshift boats. This occurred in September 2011, during a peak in migration due to the Arab Spring uprisings. Intercepted by the Italian coastguard en route to Lampedusa, they were taken to the island’s “Early Reception and Aid Centre” (“Centro di Soccorso e Prima Accoglienza” or “CSPA”). They were held there for several days: the first applicant from September 17th to 20th, and the second and third applicants from September 18th to 20th. Following a fire at the center, they were moved to a sports facility, from which they later escaped. On September 22nd, they were apprehended and flown to Palermo (Sicily), where they were confined on ships in the harbor with hundreds of other migrants for several days. On September 27th, a group including the second and third applicants were transported from the ships to Palermo airport, met briefly with the Tunisian Consul, and were immediately returned to Tunisia. The first applicant followed the same procedure on September 29th.
2. The Application to the ECHR and the Chamber Judgment
The applicants argued that the Italian government violated several of their rights under the ECHR. They claimed violations of their right to liberty (Article 5 ECHR), alleging that the Lampedusa center and the ships were used as detention centers without legal basis (Article 5 § 1), without providing information to those detained (Article 5 § 2), and without granting access to judicial review (Article 5 § 4). They also asserted violations of their right to be free from inhuman and degrading treatment (Article 3) due to overcrowding and poor conditions at both the center and on the ships. Furthermore, they alleged a violation of their right against collective expulsion (Article 4 of Protocol No. 4) because their return was based solely on a bilateral agreement with Tunisia from April 2011, decided solely on their nationality without considering individual circumstances. Lastly, they argued a violation of their right to an effective remedy (Article 13), in conjunction with Article 3 and Article 4 of Protocol No. 4, as they couldn’t challenge their detention conditions or the return procedure.
The Chamber delivered its judgment on September 1st, 2015. It unanimously found violations of Article 5 §§ 1, 2, and 4. The majority (five to two) found a violation of Article 3 regarding conditions at the Lampedusa center but not on the Palermo ships. This majority also found the expulsion to be collective, breaching Article 4 of Protocol No. 4, citing factors like the lack of individual assessments and the reliance on the bilateral agreement with Tunisia for simplified returns. Finally, the majority found a violation of Article 13 in conjunction with both Article 3 (lack of remedy for detention conditions) and Article 4 of Protocol No. 4 (appeals against refusal-of-entry orders not suspending their enforcement).
3. The Grand Chamber Judgment
The Italian government requested a referral to the Grand Chamber, which was accepted in February 2016. The hearing took place on June 22nd, 2016, with the final judgment delivered on December 15th, 2016. The Grand Chamber upheld the violations of Article 5 §§ 1, 2, and 4, as well as the violation of Article 13 in conjunction with Article 3.
3.1. Statements Concerning Immigration Detention
The Grand Chamber, echoing the Chamber, unanimously found violations of Article 5 §§ 1, 2, and 4.
The government argued that Article 5 did not apply because the applicants weren’t deprived of their liberty, claiming that neither the Lampedusa center nor the Palermo ships were intended for detention but for providing aid and assistance. The Court disagreed, emphasizing that deprivation of liberty is determined by the concrete situation, considering factors like the type, duration, effects, and manner of implementation. It noted that both the center and ships were under surveillance, restricting movement, and that the applicants’ confinement lasted for a significant duration (around nine to twelve days). The Court stressed that the authorities’ intentions or legal classifications did not change the constraining nature of the measures.
The Court then found violations of specific provisions of Article 5. Regarding Article 5 § 1, it determined that the detention lacked a legal basis. The Court highlighted that Italian law permits immigration detention only in specific centers (CIEs) and under strict circumstances not met in this case. The bilateral agreement with Tunisia, not made public and thus inaccessible to the applicants, couldn’t serve as a legal basis.
Regarding Article 5 § 2, the lack of a clear legal basis meant the applicants couldn’t be informed of the reasons for their detention, preventing them from challenging it. The Court clarified that merely informing them about their migrant status or potential removal wasn’t sufficient.
As for Article 5 § 4, the lack of information about their detention effectively voided their right to appeal. The Court stated that its finding under Article 5 § 2 already demonstrated the absence of an effective remedy for challenging their detention.
3.2. Statements Concerning Inhuman and Degrading Treatment
Regarding Article 3, the Grand Chamber upheld the Chamber’s judgment concerning the ships but overturned it regarding the Lampedusa center, concluding that neither situation constituted inhuman or degrading treatment.
The Grand Chamber acknowledged that Article 3 is absolute but stressed the importance of context, particularly the exceptional situation in 2011. It recognized the difficulties faced by Italian authorities due to increased migration.
Concerning the Lampedusa center, the Court found that the conditions, while challenging, didn’t exceed the severity threshold for Article 3, considering factors like the relatively short duration of confinement (three to four days) and the applicants’ freedom of movement within the center.
Regarding the ships, the Grand Chamber noted the lack of objective evidence supporting the applicants’ allegations of overcrowding and poor conditions. It refused to shift the burden of proof onto the government, highlighting the lack of evidence suggesting ill-treatment by state agents. It also relied on an Italian court decision, contradicting the applicants’ account, which it deemed reliable despite their criticisms.
3.3. Statements Concerning Collective Expulsions
The Grand Chamber, by a sixteen-to-one majority, overturned the Chamber’s ruling and found no violation of Article 4 of Protocol No. 4.
The Grand Chamber defined collective expulsion as any measure compelling a group of foreign nationals to leave without individual assessments. It underlined that this provision aims to ensure individuals can submit arguments against their expulsion.
The Court acknowledged that while the applicants were identified twice (upon arrival and before departure), the parties disagreed about the first identification’s nature. The applicants claimed it was limited to data collection, while the government maintained it involved individual interviews. The Court, accepting the government’s “plausible explanation” that documentation was destroyed in the fire, sided with their version.
The Grand Chamber emphasized that Article 4 doesn’t always necessitate individual interviews. It considered that the applicants, during their nine to twelve days in Italy, had opportunities to raise relevant issues, including during their interaction with the Tunisian Consul before departure. It dismissed the similar wording of refusal-of-entry orders and the simultaneous expulsion of other Tunisians as insufficient to prove collective expulsion, given the opportunity for individual appeals.
Furthermore, the Court questioned the practicality of individual interviews in this case, noting that the applicants’ representatives couldn’t present any legal or factual grounds justifying their presence in Italy.
Finally, the Court deemed it unnecessary to address whether the undisclosed Italy-Tunisia agreement constituted a “readmission” agreement under EU law and its implications for Article 4 of Protocol No. 4.
3.4. Statements Concerning the Availability of Effective Remedies at National Level
The Grand Chamber confirmed the violation of Article 13 in conjunction with Article 3 but overturned it regarding Article 4 of Protocol No. 4.
Regarding inhuman and degrading treatment, it found no available remedies for challenging detention conditions, as appealing refusal-of-entry orders only addressed the legality of removal, not the conditions themselves.
Concerning collective expulsion, while a domestic remedy existed, the Court assessed whether its lack of automatic suspensive effect constituted a violation. Unlike the Chamber, the Grand Chamber concluded that such an obligation arises only when there’s a real risk of ill-treatment or a threat to life (Articles 2 and 3). As the applicants made no such claims, the absence of automatic suspensive effect didn’t violate Article 13 in conjunction with Article 4 of Protocol No. 4.
4. Comment
The Khlaifia and Others judgment, with its extensive scope, requires a thorough analysis. However, some key strengths and weaknesses are worth noting here. An Annex summarizes its implications for interpreting EU law in this field.
The judgment’s stance on Article 5 significantly strengthens protections for those crossing borders without valid documents, emphasizing that deprivation of liberty, even during migration crises, requires legal clarity, procedural safeguards, and judicial oversight.
The Court’s consideration of the 2011 migration crisis concerning Article 3, while potentially troubling for its impact on the article’s absolute nature, should be viewed within the context of the case. The Court recognized the objective difficulties faced by Italy but failed to fully address how the unlawful detention contributed to the dire conditions, potentially impacting its assessment of Article 3 violations.
Regarding collective expulsion and effective remedies, the judgment suffers from ambiguity. It remains unclear whether the Court dismissed the collective expulsion claim based on the purported individual interviews or because such interviews were deemed unnecessary in the absence of risks to life or well-being. This restrictive interpretation of Article 4 of Protocol No. 4, equating it to non-refoulement under Articles 2 and 3, undermines its independent significance.
Similarly, limiting the automatic suspensive effect of appeals (Article 13) to cases involving risks to life or well-being diminishes the practical distinction between Article 13’s application to Articles 2 and 3 and to Article 4 of Protocol No. 4.
A more convincing interpretation, supported by dissenting opinions and third parties, argues that Article 4 of Protocol No. 4 guarantees procedural rights independent of individual circumstances. Consequently, effective domestic remedies should always include an automatic suspensive effect to prevent potential abuses and arbitrary decisions, regardless of the arguments presented or the destination country’s perceived safety.
By adopting a narrower view, the Court missed an opportunity to strengthen the protection of migrants’ fundamental rights amid Europe’s ongoing migration challenges.
Barnard & Peers: chapter 26
JHA4: chapter I:7
Photo: detention on Lampedusa
Photo credit: UNHCR
Annex: the EU law implications
Professor Steve Peers
While this judgment and its concurring and dissenting opinions lack detailed discussion on EU law, its findings could influence EU law interpretation, especially concerning the perceived “migration crisis.”
Firstly, the recognition that holding individuals in reception centers and ships can constitute detention impacts the interpretation of the EU’s reception conditions Directive (asylum-seekers) and the Returns Directive (irregular migrants), considering the ECJ’s recognition of the ECtHR’s definition of “detention.”
Secondly, the ECtHR’s understanding of “lawful” detention matters because EU law also mandates lawful detention.
Thirdly, the emphasis on judicial control over detention, even during migration crises, reinforces that there are no exceptions to judicial review in such situations. The ruling on Article 5(4) violation, stemming from the Article 5(2) breach, is relevant to interpreting Article 9(3) of the reception conditions Directive and Article 15(2) of the Returns Directive.
Fourthly, the violation of Article 5(2) due to the lack of information provided to those detained, despite their awareness of illegal entry, confirms the importance of informing individuals about the reasons for their detention, as stated in Article 9(4) of the reception conditions Directive. It also adds to Article 15(2) of the Returns Directive, which currently lacks an explicit requirement to inform.
Fifthly, the ruling that conditions in reception centers and ships didn’t breach Article 3, offering states some leeway during migration crises, influences the interpretation of detention conditions stipulated in the reception conditions and Returns Directives.
Sixthly, while not explicitly banned in the Returns and asylum procedures Directives, collective expulsion is implicitly prohibited by the requirements for individual decision-making and compliance with the EU Charter of Rights, which explicitly forbids it. The judgment confirms that this ban applies even when framed as a refusal of entry. However, the ECtHR’s acceptance of a lack of individual interviews, as long as individuals can challenge their expulsion, falls short of the standards set by the asylum procedures Directive and the ECJ’s interpretation of the right to be heard for irregular migrants.
Seventhly, the Article 13 violation due to the lack of effective remedies for challenging detention conditions could be relevant to EU law. While not explicitly mentioned in the Directives, Article 47 of the Charter (the “effective remedies” clause) implies the necessity for such remedies.
Lastly, the acceptance of the lack of automatic suspensive effect, due to no alleged risks under Articles 2 or 3, justifies the absence of such effects under the Returns Directive, except in specific cases. Conversely, it reinforces the need for suspensive effects or the possibility to request them in asylum cases, as outlined in the procedures Directive.