ECtHR - Sharifi and Others v Italy and Greece, Application No. 16643/09

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Country of Applicant: 
Afghanistan
Eritrea
Sudan
Date of Decision: 
21-10-2014
Citation: 
Sharifi and Others v Italy and Greece (Application No. 16643/09), 21 October 2014
Court Name: 
European Court of Human Rights; Second Chamber
Relevant Legislative Provisions: 
International Law
International Law > 1951 Refugee Convention
International Law > 1951 Refugee Convention > Art 33
European Union Law > EN - Regulation No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office
Council of Europe Instruments > ECHR (Fourth Protocol)
Council of Europe Instruments > ECHR (Fourth Protocol) > Art 4
Headnote: 

The case examines allegations of the indiscriminate expulsion of foreign nationals from Italy to Greece who had no access to asylum procedures and who subsequently feared deportation to their countries of origin. In regards to four of the applicants, the Court held that Greece violated Article 13 (right to an effective remedy) and Article 3 (prohibition of inhuman or regarding treatment).  It also held that Italy violated Articles 13 and 3 as well as Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens.)

Facts: 

The facts of the case relate to 35 individuals who at different times between 2007 and 2008 had reached Greece and later travelled by boat to Italy. Upon arriving at various Italian ports the boats were intercepted by border guards and immediately refouled to Greece. In both countries the applicants were subjected to violence meted out by the police and crew on the vessels and were not granted the opportunity to lodge asylum applications.

With regards to Italy the applicants were neither given the opportunity to contact lawyers or translators and were provided no information as to their rights. No official translated letter was furnished concerning their return to Greece, instead upon disembarkation in Italy the applicants were immediately returned to the boat and sent back to Greece. For the entirety of the journey some applicants were locked in cabins and others in toilets.

In Greece, the applicants were immediately detained and later placed in a make shift camp in Patras where reception conditions were inhumane, with no access to toilets, food or medical assistance.  In this regard a request for a rule 39 interim measure was lodged in front of the court after reports that several Afghan nationals in Patras had been expelled to Turkey and later back to Afghanistan. Following on from subsequent correspondence with the Court documenting the closing down of the Patras camp and police violence the Court indicated interim measures with regards to several of the applicants, some of which were nonetheless refouled back to Turkey, Albania or detained in Greek prisons.  During the time spent in Greece the applicants advanced that no possibility to contact a lawyer or translator was provided, that they had no access to the asylum procedure or a first instance procedure which had competence to hear their complaints.

Decision & Reasoning: 

Procedural admissibility

Notwithstanding the Italian Governments submissions that the majority of applicants had given false information concerning their identities to their lawyers, the Court found that there was little doubt as to the authenticity of documentation allowing power of attorney to the applicants’ lawyers as well as the authenticity of their identities and their claims.

The Court noted with regards to the exhaustion of domestic remedies that to be in compliance with Article 45 paragraph 3 of the Rules of the Court, the lawyer must keep in contact with the applicant. This is essential not only in order to acquire a thorough understanding of the case but to also confirm that the applicant still wishes to continue litigating. Indeed Article 37 of the ECHR allows the Court to strike out the case where evidence shows that the applicant does not intend to pursue his application [124].

Applying this to the facts of the case the Court found that only four applicants had maintained regular contact with their legal representatives, demonstrating an intention to pursue the application. The Court subsequently considers the case with regards solely to these four individuals. [134].

General principles and their application to the present case

Turning first to the complaints lodged against Greece the Court notes that the main grounds of litigation turn on the applicants fear that there would be a breach of their right to life and prohibition of torture if returned to Afghanistan as well as the lack of access to an effective remedy in Greece. Taking cue from Singh and others v. Belgium (Application no. 33210/11) the Court noted that the argumentation presented relating to refoulement to Afghanistan should be examined from the angle of Article 13 read in conjunction with Article 3. [140]. 

Referring to M.S.S. v. Belgium and Greece (Application no. 30696/09) as well as I.M. v. France (Application no. 9152/09) the Court noted that Article 13 requires that a remedy be sufficiently accessible in theory and practice. Indeed, the Court reiterated that the accessibility of a remedy in practice is decisive when assessing its effectiveness. Noting that the Convention has the aim of protecting rights which are concrete and effective, not theoretical or illusionary, the Court went on to highlight that practical access to a remedy lies in the consideration of linguistic barriers, access to necessary information and clear legal advice. The Court further highlighted that the Asylum Procedures Directive as well as the Dublin Regulation III require Member States to allow asylum seekers effective access to an asylum procedure which hinges on exhaustive and comprehensive information being provided to the applicants [169].

Turning to the case at hand the Court found no reason to distance itself from the finding in M.S.S of generalised insecurity prevalent in Afghanistan and the procedural shortcomings within the Greek asylum procedure identified in M.S.S, notably a lack of communication between applicant and asylum authorities, shortage of lawyers and translators, lack of legal aid and excessive delays in obtaining a decision [175].

The Court identified the lack of information provided on the right to ask for asylum as well as the precarious situation that asylum seekers faced in Greece, highlighted in M.S.S and reiterated by third party interveners in the present case. Indeed, the Court highlighted that the Patras camp was a make shift one and not a reception centre run by government authorities. The conditions in the camp fell below levels of dignity and lacked essential services. This finding could not be ignored when evaluating whether or not the applicants had concrete possibilities of receiving necessary assistance or information [179].

Given that the applicants had already been victims of expulsion and risked being refouled back to Afghanistan, the Court found that they clearly had a concrete reason to access a remedy.  The Court, thus, found that there had been a violation of Article 13 read in conjunction with Article 3 [180].

Turning to Article 3 and the submissions by the applicants that upon arrival to Greece from Italy they had been placed in containers and later police stations where the conditions were deplorable, documented widely by the UNHCR and NGO reports [188], the Court raised concerns over the immediate detention of irregular migrants upon arrival to Greece. However, the Court was unable to find a violation of Article 3 given that no specific details had been furnished concerning the detention centres, notably the length of detention and conditions within the centres. The Court therefore held the claim to be manifestly unfounded under Article 35 para 3a and 4 [189].

Turning to Italy the Court first considered the applicants’ submissions that their refoulement by Italian authorities constituted an indirect refoulement to Afghanistan and that unable to contest these actions by Italy the applicants were collectively expelled [190]. Referring to Hirsi Jamaa and Others v. Italy (Application no. 27765/09) the Court highlighted that the aim of Article 4 Protocol 4 is to stop States from expelling third country nationals without examining their individual situation, which eliminates the possibility of individuals opposing such a measure. Highlighting that this is the case for interceptions in the high sea, the Court found that any opposite conclusion would deprive the Article of effect [211]. Having regard to the third party interventions as well as other international sources which document “readmissions” to Greece by Italian authorities, the Court found that these actions prevented third country nationals from introducing an asylum application and thus any associated procedural and material rights associated with an asylum claim [215].  Indeed, the Court highlights that Italy has misconstrued the 1999 readmission agreement with Greece by not requesting permission from Greece before readmitting third country nationals to the country.  Turning to argumentation presented by Italy which advanced that the Dublin system rendered Greece responsible for the asylum applications, the Court held that to come to such a conclusion required an individualised assessment rather than the Italian practice of expelling en masse. Holding that no form of collective indiscriminate expulsion was justified under Dublin (M.S.S v Belgium) and that transfers must be applied in a manner compatible with the Convention, the Court further submitted that no such practices could be excused because of migratory pressure and thus held that the four applicants had been collectively and indiscriminately expelled, leading to the finding that Article 4 Protocol 4 had been breached [225].

With regards to a violation of Articles 2 and 3 of the ECHR the Court looked to the risk presented to the applicants if they were sent back to Afghanistan. Referring to M.S.S as well as Hirsi Jamaa the Court found that the onus is on the State, when returning an individual, to assure that the receiving State offers sufficient assurances that the individual will not be refouled without an evaluation being undertaken of the risks that that person would face if he/she were sent back to his/her country of origin.  This applies to the Dublin system as well [233].  Thus when considering Italy’s responsibility for refouling applicants to Greece the Court found no reason to distance itself from the finding in M.S.S regarding Belgium. Having already found Greece to be in violation of Article 13 read in conjunction with Article 3 the Court found Italy to be in breach of Article 3 but considered there to be no need to examine submissions under Article 2.

As to a violation by Italy of Article 13 and considering the previous findings relating to a breach of Article 3 and Article 4 Protocol 4, the Court reiterated the finding that upon disembarkation in Italy the third country nationals were returned immediately without a translator or information being furnished. The Court found a direct link between the collective expulsion and the fact that the applicants were prevented from requesting asylum. The Court therefore found Italy to be in breach of Article 13 read in conjunction with Article 3 and Article 4 Protocol 4 of the Convention. The Court found no reason to examine the submissions under Article 13 and Article 2.   

Lastly the Court found there to be no reason to examine Article 34 of the Convention.  

Outcome: 

The Court decided to strike out the complaints of 31 individuals but found admissible submissions by 4 individuals.

The court found Greece to be in violation of Article 13 read in conjunction with Article 3 with regards to the 4 individuals.

The Court further found Italy to be in violation of Article 4 Protocol 4 of the Convention, Article 3 and Article 13 read in conjunction with Article 3 and Article 4 Protocol 4.

Subsequent Proceedings : 

An action plan detailing the execution measures planed or already taken was submitted by the Italian authorities to the CoE Committee of Ministers on 23 July 2015. It is currently under assessment

Observations/Comments: 

Observations and interventions

Observations in the case were submitted by the Italian and Greek governments as well as by the United Nations High Commissioner for Refugees (UNHCR), the Centre for Advice on Individual Rights in Europe (“the AIRE Centre”) and Amnesty International, which had been given leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).

With regards to Greece all three interveners highlighted that asylum legislation and domestic practices in Greece were in no way compatible with International and European rules. Notably, attention was paid to the absence of adequate information on the asylum procedure and the lack of trained persons to welcome asylum seekers and proceed with their claims.

According to the UNHCR notwithstanding that Greek legislation does not provide for the immediate detention of migrants viewed as irregularly entering the country, they are systematically detained upon arrival. No alternative to detention or individual assessment considering the necessity of detention is undertaken. Indeed the prolonged length of detention as well as conditions within centres means that many are put off from applying for asylum in the country. Moreover, the UNHCR advanced that individuals placed in detention do not have access to legal information nor to a lawyer or translator. Where they are released from the centres the majority do not have accommodation and live in extreme poverty.

According to the AIRE Centre and Amnesty International even those who have applied for asylum do not have access to a lawyer or legal information. This contributes to the impossibility of obtaining asylum or any other form of international protection in Greece. Accordingly, this is contrary to both procedural guarantees provided for in EU asylum law and the 1951 Refugee Convention.

Further the UNHCR raises concerns over the treatment of unaccompanied minors, often received in the same way as adults and the flawed system of age assessment in the country. All three interveners condemn the collective expulsion of individuals to Turkey which not only concern new arrivals but those who are registered asylum seekers.

Submitting further interventions as to the situation in Italy, the UNHCR highlighted, having regard to Article 33 of the 1951 Refugee Convention as well as the ECHR, that the principle of non-refoulement prohibits States from returning persons in any manner whatsoever to countries or territories in which their lives or freedom may be threatened.  This applies to any refugee independently of his/her administrative status and thus is applicable to asylum seekers.

In this regard the UNHCR raised serious concerns about refusal to admit persons on the territory and immediate refoulement by Italian authorities at Adriatic ports. Indeed, various reports testified to these actions as well as evidence documenting Italian border police informally refouling persons on the basis of the 1999 bilateral agreement and Article 2 para 3 of the Dublin II Regulation.  Further highlighting that the Italian authorities left it to the captain of the vessel to fill out the details of persons on board, the UNHCR highlighted that this breached the 1999 agreement as well as EU asylum law which requires the individual evaluation of protection needs. Indeed, the AIRE centre and Amnesty International advanced the same submissions, noting that the bilateral agreement between Italy and Greece deprived persons of procedural guarantees provided for in the Dublin II Regulation, read in the light of the principle of non-refoulement.

Concurring Opinion Judge Lemmens

Focusing purely on a technical aspect of the case Judge Lemmens raised concerns over the non-exhaustion of domestic remedies in Greece with regards to Articles 2 and 3 of the ECHR. Noting that the majority implicitly decided not to consider Articles 2 and 3, instead focusing on Article 13 read in conjunction with 3, Judge Lemmens criticises the Court for not examining the validity of Greece’s submissions with regards to Articles 2 and 3.  

Case Law Cited: 

ECtHR - Hussun and Others v Italy, No. 10171/05, 10601/05, 11593/05 and 17165/05

ECtHR - Burden v. the United Kingdom [GC], Application No. 13378/05

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

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

ECtHR - S.D. v Greece (Application no. 53541/07)

ECtHR - KRS v United Kingdom (Application no. 32733/08)

ECtHR - Salman v. Turkey [GC], Application No. 21986/93

ECtHR - Bygylashvili v. Greece, Application No. 58164/10

ECtHR - Barjamaj v. Greece, Application No 36657/11 (UP)

ECtHR - Horshill v. Greece, Application No. 70427/11

ECtHR - Singh and Others v. Belgium, Application No. 33210/11

ECtHR - Khuroshvili v. Greece, Application No 58165/10 (UP)
Other sources cited: 

-          Executive committee of the high commissioner’s programme, Fifty-second session, Note on international protection,  A/AC.96/951, 13 September 2001

-          Council of Europe Committee of Ministers Recommendation No. R (84) 1 of the committee of ministers to member states on the protection of persons satisfying the criteria in the Geneva Convention who are not formally recognised as refugees (Adopted by the Committee of Ministers on 25 January 1984 at the 366th meeting of the Ministers' Deputies)

-          Council of Europe, Committee of Ministers, Decision CM/Del/Dec(2011)1120/2, 14 September 2011

-          Council of Europe, Committee of Ministers, Decision CM/Del/Dec(2012)1144/5, 6 June 2012

-           Council of Europe, Committee of Ministers, Decision CM/Del/Dec(2013)1164/5, 5 March 2013

-          Council of Europe, Commissioner for Human Rights, Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Greece from 28 January to 1 February 2013, 16 April 2013

-          CIR, Rapporto attività 2007, May 2008 ;

-          Progetto Melting Pot Europa, Diritti respinti. Gli atti dell’assemblea cittadina sul porto di Venezia, 11 December2008

-          Integration Catholic Migration Commission, May Day! Strengthening responses of assistance and protection to boat people and other migrants arriving in Southern Europe, September 2011

-          Pro Asyl – Greek Council for Refugees, Human Cargo. Arbitrary readmissions from the Italian sea ports to Greece, July 2012

-          HCR, Recommendations on Important Aspects of Refugee Protection in Italy, July 2012

-          Council of Europe, Commissioner for Human Rights, Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe following his visit to Italy from 3 to 6 July 2012, 18 September 2012

-          European Network for Technical Cooperation on the Application of Dublin II Regulation, Dublin II Regulation National Report. Italy, 19 December 2012

-          Human Rights Watch, Turned Away. Summary Returns of Unaccompanied Migrant Children and Adult Asylum Seekers from Italy to Greece, January 2013

Report by the Special Rapporteur on the human rights of migrants, François Crépeau. Mission to Italy (29 September – 8 October 2012), 30 April 2013.

Authentic Language: 
French
State Party: 
Greece
Italy