ECtHR - Khlaifia and Others v. Italy (GC), no. 16483/12, 15 December 2016

Article 5 (1)

The Court first analysed the guarantees found in Article 5 (1) and emphasised that the provision’s requirement that any deprivation of liberty is “in accordance with a procedure prescribed by law” does not simple refer to the existence of domestic legislation but also to its quality and compatibility with the rule of law. In terms of applicability of 5 (1) f, the Court agreed with the judgment under referral that, since their deprivation of liberty was connected to procedures relating to their unlawful entry, this limb of Article 5 is applicable.

In examining the legal basis of the applicants’ detention, the Court noted that stays in the CSPA were restricted to the time needed to establish identity and legality of presence and did not have the same guarantees that Italian law provided for detention in a Centre for Identification and Expulsion (CIE), namely, an administrative decision subject to judicial review. The applicants had not received formal decisions of detention and the Court did not find any legal basis for their deprivation of liberty Even if their detention was pursuant to the bilateral agreement between Italy and Tunisia, this did not provide an adequate legal basis under the exhaustive grounds set out in Article 5 and was not publicly accessible. The Court also observed the findings of the PACE Ad Hoc Sub-Committee and the Italian Senate’s Special Commission, which referred to practices of ­de facto detainees of unclarified legal status. Concurring with the Chamber judgment, the Court found that 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.

Article 5 (2) & (4)

On this point, the Court followed a line similar to that of the Chamber and stated that the mere lack of legal basis rendered the Italian authorities incapable of informing the applicants of the legal reasons or possibility of legal challenges against their detention. Although the applicants were probably aware of their status as irregular migrants and potential measures of removal, this information alone cannot satisfy the need for information in line with Article 5 (2). The Court last noted that, even if the orders relating to the refusal of entry included information on the legal for the detention, these were not quickly notified to the applicants and could not, in any case, satisfy the requirement of promptness. Additionally, the Court referred to relevant case law and clarified that, where detainees have not been informed of the reasons for their detention, their right to challenge the detention decisions was not effective.

Article 3

The Court first reiterated the absolute character of the prohibition of inhuman and degrading treatment and noted that such a treatment has to reach a certain level of severity in the light of, inter alia, the specific circumstances of the case, the individual’s vulnerability and the context in which it is inflicted. Regarding the conditions of detention, the judges observed that the duration of detention and the lack of space in an institution are key factors in assessing compliance with Article 3, along with considerations of hygiene, outdoor activities, ventilation, light and privacy.

After examining comparable case law regarding the principles that govern the application of Article 3, the Court turned to the instant case sharing its concern with the Chamber in respect of the humanitarian emergency situation on the island of Lampedusa. Therefore, the judges did not agree with the applicants’ argument that the situation at the time of the events was not exceptional and noted that to do otherwise would place an excessive burden on the national authorities. Although constraints due to a humanitarian crisis cannot, in themselves, be used to justify Article 3 treatment, the Court analysed the conditions in the reception centre and the two ships separately and taking into account the extreme difficulties the Italian authorities were facing.

Regarding the conditions at the reception centre, the Court noted that the applicants’ stay was only for a short period of 3-4 days. Where the duration of the deprivation of liberty is very short, the Court has found a violation of Article 3 in cases of extremely negative conditions but the present case does not reach the threshold required by Article 3. Additionally, the Court stated that it cannot ignore the reports by the PACE Ad Hoc Sub-Committee and by Amnesty International documenting the unsuitability of the Lampedusa centre for stays of more than a few days. However, it concluded that, in the instant case, it cannot rule on whether the authorities complied with their obligation to transfer the applicants in a more suitable centre as a violent incident erupted two days after the last two applicants arrived and it could not presume the authorities action had that incident not occurred. Consequently, the Court departed from the Chamber judgment and did not find a violation of Article 3 for the conditions in the reception centre.

With regard to the conditions on board the ships, the Court concurred with the Chamber judgment and held that 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 on 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.

Article 4 of Protocol 4

The Court first addressed the notion of “collective expulsions” and reiterated its conclusions in previous case law that a removal measure must be made on the basis of reasonable and objective examination of the individual circumstances. However, the fact that several aliens may be subject to similar decisions does not in itself suffice to conclude that there is a collective expulsion if each person had an opportunity to put arguments against their expulsion.

In the present case, the Court resorted to the definition of expulsion by the International Law Commission to reiterate the current and generic meaning of expulsion as a measure that entails the removal of the applicant from the territory. Having established that the measure under review was one of expulsion, the Court went on to consider its collective nature. Although the applicant had stated that their identification did not involve an assessment of their personal circumstances, the Court found that the reported existence of several healthcare professionals, interpreters and cultural mediators at the centre testified to a reasonable assumption that they facilitated communication between the migrants and the Italian authorities. Similarly, the applicants had, in any case, the opportunity to raise their concerns regarding a return to Tunisia at any stage of the identification procedure or their stay at the centre or the boats. On this point, the Court emphasised that Article 4, Protocol 4, does not guarantee the right to an individual interview under any circumstances and it may be satisfied where the migrant has a genuine and effective possibility to raise arguments in respect of their expulsion, which will be examined appropriately.

The Court took note of the Chamber’s finding that the refusal-of-entry orders were very similarly drafted and a large number of Tunisian migrants had been expelled at that time. However, the standardised form of such orders could be explained by the fact that the applicants had no valid travel documents and they had not addressed other obstacles to their removal, making the use of simple-form orders reasonable. Lastly, the almost simultaneous removal of the three applicants is not sufficient to establish a collective nature within the meaning of Article 4 of Protocol 4, as it may be the result of consecutive individual refusal-of-entry orders. The Court also observed that the applicants’ representatives had not indicated any grounds that would affect the status of the applicants in Italy and would impede the removal. The lack of such grounds casts doubts on the usefulness of an individual interview in this case. The Court disagreed with the Chamber’s conclusions and found that there was no violation of Article 4 Protocol 4.

Article 13 in conjunction with Article 3 and Article 4 Protocol 4

The Court found that there was no effective remedy for the applicants to complain about the conditions in the reception centre and the boats, as the only remedy available to them was the one relating to their refusal-of-entry orders. On the point of Article 4 of Protocol 4, the Court saw no reason to depart from the Chamber’s reasoning that the remedy against the refusal-of-entry order would not also cover any complaints the wanted to make regarding the personal situation of the migrants. In examining whether the lack of suspensive effect of that remedy is relevant to the examination of Article 13 in conjunction with Article 4 Protocol 4, the Court recognised the importance of suspensive but noted that this should be assessed by taking the overall situation into account. In this respect, it found that lack of suspensive effect in a remedy does not violate Article 13, where allegations are only made with regard to the collective nature of the expulsion and not in relation to a real risk of violation of Article 2 and Article 3 in the destination country.