The EU Immigration and Asylum Law and Policy blog has published an interesting article on last September’s European Court of Human Rights’ decision in Khlaifia and Others v Italy (application no. 16483/12), 1 September 2015. Unfortunately the judgment is only available in French and Italian so we are grateful to the blog for filling in a lot of the detail in English.
It’s testament to the severity of the Syrian refugee crisis that coverage of the migrant issue is now almost entirely focused on arrivals in the Greek islands from across the Aegean. Yet it is only last summer that the main concern in Europe was about arrivals in Italy from North Africa.
Khlaifia concerned the repatriation to Tunisia of clandestine migrants who had landed on the Italian coast in 2011 during the Arab Spring. However, it will be of general application to any situation where a state seeks to expel groups of people together, and may well be particularly relevant in light of recent reports that NATO has deployed ships in the Aegean to return migrants to Turkey who are seeking to reach Greece.
In Khlaifia, the three applicants were Tunisian nationals who left Tunisia by sea in boats that were intercepted by the Italian authorities. They were taken to a reception centre (a CSPA) on the island of Lampedusa. Following a fire at the centre due to a riot, the applicants were taken to a sports park for the night from which they escaped and then took part in a protest demonstration with 1,800 other migrants. They were arrested and transferred to Palermo, where they were detained on ships for four days before being expelled to Tunisia.
The European Court of Human Rights found that the applicants had been detained in extremely poor conditions of detention in the reception centre amounting to degrading treatment contrary to Article 3 ECHR. It also found that they had been unlawfully detained in violation of Article 5 § 1 because Italian law did not expressly provide for the detention of migrants placed in a CSPA. It further found there had been a violation of Article 5 § 2 because they had not been promptly informed of the reasons for their detention – they were not given reasons until their repatriation to Tunisia and these were incomplete and insufficient. The Court also found there had been a violation of Article 5 § 4 since as the applicants had not been informed of the reasons for their detention, they had never been able to challenge its lawfulness.
However, of most interest in the judgment is the manner in which the Court dealt with the complaint by the applicants that they had been subjected to collective expulsion, which is prohibited under Article 4 of Protocol No. 4 of the Convention.
This was not the first time that Strasbourg had considered Article 4 Protocol 4 in the context of a complaint against Italy. In Hirsi Jamaa and Others v Italy (application no. 27765/09), 23 February 2012, the Grand Chamber considered the case of 11 Somali and 13 Eritrean asylum seekers who had left Libya by boat for Italy in 2009. They were intercepted by Italian Customs and Coastguard vessels within the maritime search and rescue region under the responsibility of Malta. They were taken back to Libya where they were handed over to the authorities. 14 of them were granted refugee status in Libya – however, their position was later seriously jeopardised by the overthrow of the Gaddafi regime. The Grand Chamber unsurprisingly found that there had been violations of Article 3 and 13 ECHR because the applicants had been exposed to the risk of ill-treatment in Libya and of repatriation to Somalia and Eritrea without any assessment of that risk and without any access to an effective remedy against their expulsion. However, the Court also found that there had been a violation of Article 4 Protocol 4. This was the first time it had ever been asked to consider whether the Article applied to a case involving the removal of aliens to a third State carried out outside national territory. It found that as Italy had chosen, exceptionally, to exercise its jurisdiction outside its national territory, then it could be responsible for the act of collective expulsion. It then went on to consider whether there had been a violation of Article 4 Protocol 4 and concluded that there had been. Noting that the only previous case in which a violation had been found was Conka v Belgium (application no. 51564/99), 5 February 2002, it indicated that the key question was whether the case of each person concerned had been duly examined. It found that there had been no such examination, and that the removal of the applicants had therefore been of a collective nature.
The Court has subsequently found a violation of Article 4 Protocol in respect of the collective expulsion of asylum seekers to Greece under the Dublin Regulation without an individualised analysis in Sharifi and Others v Italy and Greece (application no. 16643/09), 21 October 2014.
In Khlaifia, the situation was somewhat different. Firstly, the applicants were not asylum seekers. Secondly, there was a much smaller number in the group expelled – only three – than there had been in Hirsi Jamaa and they had each been given individual refoulement decisions. It appears to have been argued that this was a series of individual expulsions, which is permitted, rather than a collective expulsion, which is not. However, the Court rejected this argument because all of the refoulement decisions were identically worded and none of the applicants had been interviewed individually. The Court also considered it relevant that there were bilateral agreements between Italy and Tunisia providing for the repatriation of clandestine Tunisian migrants under simplified procedures based on the straightforward identification by the Tunisian consular authorities of the persons concerned.
Finally, the Court found (as it had in Hirsi Jamaa) that there had been a violation of Article 13 ECHR (right to an effective remedy) taken in conjunction with Article 4 Protocol 4. In Hirsi Jamaa there had been a breach because the applicants had been unable to lodge their complaints with a competent authority at all. However, in Khlaifia, the violation arose because their right of appeal to a magistrate about the lawfulness of their repatriation to Tunisia did not have suspensive effect upon their removal.