ECtHR - Khlaifia and Others v. Italy (no. 16483/12), 1 September 2015

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Country of Applicant: 
Date of Decision: 
Khlaifia and Others v. Italy (no. 16483/12)
Court Name: 
European Court of Human Rights (Second section)
Relevant Legislative Provisions: 
Council of Europe Instruments > ECHR (Fourth Protocol) > Art 4
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.1 > Art 5.1 (f)

The Court found that three nationals of Tunisia had been unlawfully detained upon arrival in Italy, first in a reception centre and then on board ships, where they were not provided information and had no opportunity to challenge their detention.

In addition, the conditions in the reception centre amounted to inhuman and degrading treatment.

Finally, the Court found that the applicants had been subject to collective expulsion, as despite being identified individually and being issued with separate repatriation decrees, their individual circumstances had not been genuinely considered prior to their return to Tunisia. 


This case relates to three nationals of Tunisia who left, along with others, on makeshift boats aiming to reach Italy during the ‘Arab Spring’. The Italian coastguard intercepted their boats and took them to the island of Lampedusa on 17 and 18 September 2011.

They were transferred to the Contrada Imbriacola first reception centre (CSPA) for registration, which they alleged was overcrowded with unacceptable sanitation, inadequate space to sleep, constant police surveillance and no contact with the outside world. The applicants were transferred to a sports complex following an uprising by detainees in which the reception centre was partially destroyed by fire. They managed to escape to the village of Lampedusa, where they participated in demonstrations along with around 1,800 others. They were stopped by police and taken back to the CSPA before being flown to Palermo on 22 September.

They were placed on ships moored at the dock, but confined to overcrowded areas in the restaurant halls, with limited access to the toilets and no information from the authorities, where they allege they were insulted and mistreated by police officers.

After 5-7 days respectively they were taken to Palermo airport in order to be repatriated. They were identified by the Tunisian consul and deported to Tunisia based on a bilateral agreement between the two States. The applicants allege that they were not served with any documents at any time during their stay in Italy.

In the course of these proceedings the Italian government produced a repatriation decree against each applicant in Italian with Arabic translations, in essentially identical terms. The decrees were not signed but stated in handwritten notes that the person concerned had refused to sign and receive a copy.

Following a complaint by anti-racist organisations, a criminal investigation took place into the unlawful arrest of migrants on board the ships and abuse of powers but the judge for preliminary investigations shelved the case in April 2012 without charges being brought.

The applicants complained that they were unlawfully deprived of their liberty, both at the CSPA and on board the ships, in violation of Articles 5(1), 5(2) and 5(4) ECHR. They also argued that the conditions of their detention amounted to inhuman and degrading treatment contrary to Article 3 ECHR. Finally, they submitted that they had been subject to a collective expulsion, in violation of Article 4, Protocol 4 ECHR. 

Decision & Reasoning: 

Article 5(1), 5(2) and 5(4) ECHR

The Italian government argued that the Article 5(1) complaint fell outside the scope ratione materiae of the Convention, submitting that the CSPA was a reception centre for first aid and assistance, and that the applicants were not detained. The ships should be considered an extension of the CSPA which the authorities were compelled to use, faced with a situation of humanitarian emergency and in view of the destruction of the CSPA, in order to ensure the safety and security of the migrants and the local population.

The Court noted that the difference between a deprivation of liberty under Article 5(1) and a restriction on the freedom of movement under Article 2 Protocol 4 ECHR was a matter of degree or intensity rather than nature or essence. The purpose of the former provision was to ensure that no one was arbitrarily deprived of their physical freedom. It considered the reports of PACE and the Italian Senate, which found that the conditions which migrants were subjected to amounted to detention. The government did not contest the applicants’ allegations that they were under constant police surveillance and were forbidden from leaving the CSPA and the ships. The Court concluded that irrespective of the fact that the CSPA was not considered  a detention centre by domestic law, the nature of the conditions amounted to a deprivation of liberty in violation of Article 5(1).

Turning to consider whether this was justified, the Court considered that Article 5(1)f) was applicable as the applicants had entered Italy irregularly and a procedure had been put in place to identify and repatriate them. However, stays in the CSPA were restricted to the time needed to establish identity and legality of presence and Italian law only provided for detention in a Centre for Identification and Expulsion (CIE), following an administrative decision, with judicial oversight. The applicants had been placed in a CSPA and had received no formal detention decision. Even if their detention was pursuant to the bilateral agreement between Italy and Tunisia, this did not provide an adequate legal basis for detention under the exhaustive grounds set out in Article 5 and this was not public so was inaccessible to the applicants. As such the applicants’ detention failed to protect them against arbitrariness or meet the principle of legal certainty leading to a violation of article 5(1) ECHR.

With regard to Article 5(2) the Court found that the applicants were not informed of the factual and legal grounds for their detention. Their repatriation decrees merely asserted that they had entered the country by evading border controls and their removal was ordered, with no mention of their detention. They were supposedly handed these orders after 9-12 days of detention, shortly before they were to be deported, which did not meet the requirement of promptness, on top of the fact that the information received was incomplete and insufficient. As such, there was a violation of Article 5(2) ECHR. Given this finding, the Court also concluded that their right to challenge the legality of their detention was deprived of substance in violation of Article 5(4) ECHR.  

Article 3

The Court noted that the island of Lampedusa was dealing with an exceptional situation in 2011, due to a large number of boat arrivals following the uprisings in Tunisia and Libya. This led the Italian authorities to declare a humanitarian emergency on the island and created organisational and logistical difficulties, due to insufficient reception capacity which was unsuitable for stays of more than a few days. This general situation was worsened by the specific situation following the applicants’ arrival in view of the destruction of the CSPA and a demonstration by migrants which led to clashes with locals.  Conscious of the problems faced by Contracting States during exceptional waves of immigration such as in the present case, the Court nonetheless made it clear that such factors did not absolve States of their obligations pursuant to Article 3 ECHR, which is expressed in absolute terms with no possibility of derogation. 

The allegations of the applicants were corroborated by the reports by the Italian Senate, Amnesty International and PACE which described conditions of overcrowding, lack of privacy and poor sanitation. Although the applicants were there for only a short period of three to four days, they were vulnerable given they had just faced a dangerous sea voyage. The Court concluded that their detention in such conditions detrimental to their human dignity amounted to degrading treatment contrary to Article 3.

With regard to the conditions on board the ships, the allegations of the applicants were partly contradicted by the findings of the judge of preliminary investigations, in reliance on statements by a Member of Parliament who had boarded the ships and spoke to some migrants. Although the lack of information or explanation by the authorities about their detention may have caused the applicants feelings of anxiety or agitation, this was not sufficient to meet the minimum level of severity required by Article 3. Hence there was no violation on account of detention conditions on board the ships.

In addition, there was no remedy available to the applicants to challenge their reception conditions, in violation of Article 13.

Article 4 Protocol 4

The Court observed that the applicants had been issued individual repatriation decrees, but that these were drafted in identical terms, except for the personal details.

The fact that many foreigners are subject to similar decisions did not in itself lead to a conclusion of a collective expulsion. In contrast to the situation in the case of Hirsi Jamaa, the applicants had been subject to an identification procedure, but this was insufficient in itself to exclude the existence of collective expulsion.

A number of factors led the Court to conclude that there had indeed been a collective expulsion: the lack of reference to personal circumstances of the applicants in the repatriation decrees, the lack of individual interviews on their specific situation before the adoption of the decrees, the fact that many people of the same nationality were subject to the same fate as the applicants; and the fact that the bilateral agreement with Tunisia was not public and allowed repatriation of Tunisian migrants who illegally entered through simple procedures based on mere identification by the Tunisian consular authorities. These factors showed that there was no sufficient guarantee to ensure that the applicants’ individual circumstances were genuinely and individually taken into account (Conka v. Belgium). As such the applicants’ removal amounted to collective expulsion contrary to Article 4 Protocol 4.

Moreover, whilst it was possible for the applicants to challenge their collective expulsion before a justice of the peace, this would not have had suspensive effect as required by Article 13 (De Souza Ribeiro), leading to a violation. 


The Court unanimously found a violation of Article 5(1), 5(2) and 5(4) and no violation of Article 3 in relation to conditions of detention on board the ships.

It held by a 5-2 majority that there had been a violation of Article 3 in relation to conditions of detention at the CSPA, a violation of Article 4 Protocol 4, and a violation of Article 13 in conjunction with Article 3 and Article 4 Protocol 4.

The Court ordered Italy to pay each applicant 10,000 euros just satisfaction in respect of non-pecuniary damage, and costs and expenses. 

Subsequent Proceedings : 

The case was referred to the Grand Chamber on  1 February 2016. On the 15th December the Grand Chamber found that whilst Articles 5(1)(2) and (4) had been breached by the Italian government, the authorities had not violated Article 3, 4 of Protocol 4 or 13 read in conjunction with these Articles. 

ECRE and the AIRE Centre submitted written interventions to the Grand Chamber on the 17 May 2016. The submission is attached below.


Judge Keller issued a concurring opinion focusing on the justification raised by the Italian government for transferring the applicants from the CSPA due to a ‘state of necessity’ following the fire. She noted that Contracting States could only derogate from their ECHR obligations under Article 15, which the Italian authorities had not invoked, and that they could not do so in any event in relation to a situation within the scope of Article 3.

Judges Sajó and Vuċiniċ dissented from the majority by finding that conditions in the CSPA did not meet the minimum threshold of Article 3 due to the short duration. The Court in its previous case law had ruled against Article 3 violations for short periods of detention, or required additional aggravating factors such as increased vulnerability of the applicant, or extremely serious conditions, which were not present in this case.

They also disagreed with the majority finding of collective expulsion considering that this occurred in two circumstances: where members of a group are targeted for expulsion solely due to their membership of this group e.g. Roma in Conka v Belgium and Georgians in Georgia v Russia; and where an entire group of people are expelled regardless of their individual identity (Hirsi Jamaa and others v Italy and Sharifi and Others v. Italy and Greece). They considered that in this case the applicants were identified individually on arrival and again by Tunisian authorities and received an individual repatriation decree. They argue that violations of Article 4 Protocol 4 should be found only in extreme circumstances to avoid dilution of this clear international law prohibition. Due to this finding, they also disagreed with the finding of a violation of Article 13 in conjunction with their alleged inability to challenge their collective expulsion.

Judge Lemmens partly dissented, finding the amount of just satisfaction too high, taking on the appearance of punitive damages.

This is one of the few occasions in which the Court has found that there has been a collective expulsion. It raises issues with regards to procedures for the quick processing of migrants under streamlined processes even where they have been individually identified, which must allow for a genuinely individual assessment of their personal situations to avoid violation of Article 4 Protocol 4.

The Court’s comments in relation to difficulties faced by Contracting States during ‘exceptional waves of immigration’ also clarify that this cannot absolve them of their obligations pursuant to the ECHR.

Statewatch have published an analysis of the judgment in English, in which it considers the impact of the judgment in the context of EU policy on ‘hotspots’, where migrants are principally processed by nationality; and readmission agreements for the return of third country nationals. 

Case Law Cited: 

ECtHR - Allan v. United Kingdom, Application No. 48539/99

ECtHR - Alver v Estonia, Application No. 64812/01

ECtHR - Labita v. Italy [GC], Application No. 26772/95

ECtHR - Van der Leer v. the Netherlands, Application No. 11509/85

ECtHR - Nasrulloyev v. Russia, Application No. 656/06

ECtHR - Stanev v. Bulgaria [GC], Application No. 36760/06

ECtHR - Nikolova v. Bulgaria [GC], Application No. 31195/96

ECtHR - Mahdid and Haddar v. Austria, Application No. 74762/01

ECtHR - Karalevičius v Lithuania, Application no. 53254/99

ECtHR - Dbouba v. Turkey, Application no. 15916/09 (UP)

EctHR - Athary v. Turkey, Application No. 50372/09

ECtHR - Weeks v UK, Application No. 9787/82

ECtHR - Price v. United Kingdom, Application No. 33394/96

ECtHR - Guzzardi v. Italy, Application No. 7367/76

ECtHR - Fox, Campbell and Hartley v. the United Kingdom, Application Nos. 12244/86, 12245/86 and 12383/86

ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - A. and Others v. the United Kingdom [GC], Application No. 3455/05

ECtHR - Raninen v Finland (Application no. 20972/92)

ECtHR - Mooren v. Germany [GC], Application No. 11364/03

ECtHR - Dougoz v. Greece, Application No. 40907/98

ECtHR - Peers v. Greece, Application No. 28524/95

ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03

ECtHR - Witold Litwa v. Poland, Application No. 26629/95

ECtHR - Baranowski v Poland, Application No. 28358/95

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR- Moiseyev v. Russia, no 62936/00

ECtHR- Babushkin v. Russia, Application no 67253/01

ECtHR - Gabor Istvan Kovacs v. Hungary, no 15707/10 , § 26, 17 janvier 2012

ECtHR - Jecius v. Lithuania, No. 34578/97 , § 56, ECHR 2000-IX

ECtHR - Kadikis v. Latvia, no 62393/00 , § 55, 4 mai 2006

ECtHR - Ireland v. UK, 18 January 1978, Series A No. 25

ECtHR- Hutchison Reid v. UK, no 50272/99, § 79, CEDH 2003-IV

ECtHR - Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports 1997-IV

ECtHR - Herczegfalvy v. Austria, 24 September 1992, § 63, Series A No. 244

ECtHR - Kalashnikov v. Russia, No. 47095/99 , § 102, ECHR 2002-VI

ECtHR - Kantyrev v. Russia, No. 37213/02 , §§ 50-51, 21 June 2007

ECtHR - Naumenko v. Ukraine, No. 42023/98 , § 108, 10 February 2004

ECtHR - Ruiz Rivera v. Switzerland, No. 8300/06 , § 47, 18 February 2014

ECtHR - Velinov v. the former Yugoslav Republic of Macedonia, No. 16880/08 , § 49, 19 September 2013

ECtHR - Moghaddas v. Turkey, No. 46134/08 , § 46, 15 February 2011

ECtHR - LM v. Slovenia, No. 32863/05 , § 121, 12 June 2014

ECtHR - Kehayov v. Bulgaria, No. 41035/98 , § 64, 18 January 2005

ECtHR - Khoudoyorov v. Russia, No. 6847/02 , §§ 106-107, ECHR 2005-X

ECtHR - G.C. v. Italie, no 73869/10, § 36, 22 avril 2014

ECtHR - E. v. Norway, 29 August 1990, § 50, Series A No. 181-A

ECtHR- Mouisel v. France, Application no. 67263/01

ECtHR - Shtukaturov v. Russia, (no. 44009/05)

ECtHR - Sejdovic and Sulejmanovic v. Italy, no. 57575/00

ECtHR- Belevitskiy v. Russia, Application no 72967/01

ECtHR- Novoselov v. Russia, Application no 66460/01

ECtHR - N.C. v. Italy [GC], no. 24952/94

De Jong, Baljet and Van den Brink v. Netherlands, 22 May 1984, § 60, Series A No. 77

ECtHR - Dhahbi v. Italie, no 17120/09, § 24, 8 avril 2014

Andrei Frolov v. Russia, No. 205/02 , §§ 47-49, 29 March 2007

ECtHR - Adam et al. Germany (dec.), No. 290/03 , 1 September 2005

ECtHR - Vachev v. Bulgaria, no. 42987/98

ECtHR - Vlasov v. Russia, No. 78146/01 12 June 2008
Other sources cited: 

Extraordinary Commission for Human Rights of the Italian Senate, report on the state of human rights in penal institutions and reception and detention centres for migrants in Italy, 6 March 2012 

PACE ad-hoc subcommittee on the mass arrival of migrants in an irregular situation, asylum seekers and refugees on the coasts of Southern Europe, report of fact-finding mission, 30 September 2011

Amnesty International, ‘Findings and recommendations to the Italian authorities following research visit to Lampedusa and Mineo’, 21 April 2011


Authentic Language: 
State Party: 
National / Other Legislative Provisions: 
Italy - Legislative Decree no. 286 of 1998 (Consolidated text of provisions on immigration regulations and standards on the status of Foreigners) as amended by Act no. 271 of 2004 and Legislative Decree no. 150 of 2011: Articles 10
13 and 14
Italy - Bilateral agreement between Italy and Tunisia of 5 April 2011
Italy - Article 54(1) Criminal Code