ECtHR - Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09

The Court has found that the Applicants were within the jurisdiction of Italy for the purposes of Article 1 of the Convention. The principle of international law enshrined in the Italian Navigation Code envisages that a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. Accordingly, the events giving rise to the alleged violations fell within Italy’s jurisdiction within the meaning of Article 1 of the Convention.

The Court noted the disturbing conclusions of numerous organisations regarding the treatment of clandestine immigrants in Libya. No distinction was made between irregular migrants and asylum-seekers, who were systematically arrested and detained in conditions which observers had described as inhuman, reporting, in particular, cases of torture. Clandestine migrants were at risk of being returned to their countries of origin at any time. The Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices which were contrary to the principles of the Convention. Furthermore, Italy could not evade its own responsibility under the Convention by relying on its subsequent obligations arising out of bilateral agreements with Libya. Since the situation in Libya was well-known and easy to verify at the material time, the Italian authorities had or should have known, when removing the Applicants, that they would be exposed to treatment in breach of the Convention. Moreover, the fact that the Applicants had failed to expressly request asylum did not exempt Italy from fulfilling its obligations. The Court noted the obligations of States arising out of international refugee law, including the “principle of non-refoulement”. Furthermore, the Court considered that the shared situation of the Applicants and many other clandestine migrants in Libya did not make the alleged risk any less individual and concluded that by transferring the Applicants to Libya, the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed by the Convention.  The Court also concluded that when the Applicants were transferred to Libya, the Italian authorities had or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their respective countries of origin.

The Court for the first time examined whether Article 4 of Protocol No. 4 applied to a case involving the removal of aliens to a third State carried out outside national territory. It sought to ascertain whether the transfer of the Applicants to Libya had constituted a “collective expulsion of aliens” within the meaning of that provision. The Court observed that neither Article 4 of Protocol No. 4 nor the travaux préparatoires of the Convention precluded extra-territorial application of that Article. Furthermore, limiting its application to collective expulsions from the national territory of Member States would mean that a significant component of contemporary migratory patterns would not fall within the ambit of that provision and would deprive migrants of an examination of their personal circumstances before being expelled. The notion of “expulsion” was principally territorial, as was the notion of “jurisdiction”. Where, however, as in the instant case, the Court had found that a Contracting State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion. Furthermore, the special nature of the maritime environment could not justify an area outside the law where individuals were covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention. The transfer of the Applicants to Libya had been carried out without any examination of each Applicant’s individual situation. The Applicants had not been subjected to any identification procedure by the Italian authorities, which had restricted themselves to embarking and disembarking them in Libya. The removal of the Applicants had been of a collective nature, in breach of Article 4 of Protocol No. 4.

The Court reiterated the importance of guaranteeing anyone subject to a removal measure, the consequences of which were potentially irreversible, the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to substantiate their complaints. Even if such a remedy were accessible in practice, the requirements of Article 13 of the Convention were clearly not met by criminal proceedings brought against military personnel on board the army’s ships in so far as that did not satisfy the criterion of suspensive effect enshrined in Article 13. The Applicants had been deprived of any remedy which would have enabled them to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.

The Court also indicated that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the Applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated.