European Court of Human Rights: Khlaifia and Others v. Italy (no. 16483/12) [Articles 3, 5 and 13 ECHR, Article 4 Protocol No. 4]

Tuesday, September 1, 2015
Khlaifia and Others v. Italy relates to three Tunisian nationals who left on makeshift boats aiming to reach Italy in September 2011 during the ‘Arab Spring’. The Italian coastguard intercepted them and took them to the island of Lampedusa. They were transferred to the Contrada Imbriacola reception centre for registration, which was overcrowded with unacceptable sanitation, inadequate space to sleep and no contact with the outside world due to constant police surveillance.

Following an uprising by detainees, the centre was partially destroyed by fire, and they were transferred to a sports park. The applicants managed to escape to the village of Lampedusa where they participated in demonstrations along with around 1,800 other migrants. They were arrested and flown to Palermo where they were placed on ships. They were confined to overcrowded areas with limited access to the toilets, no information, and were insulted and mistreated by the police officers. After 5-7 days (respectively) they were taken to Palermo airport where they were identified by the Tunisian consul and deported to Tunisia based on a bilateral agreement between the two States.

The Court found that they were deprived of their liberty contrary to Article 5(1) ECHR as there was no legal basis in domestic law for their detention. Their detention did not meet the general principle of legal certainty or protect the applicants from arbitrary treatment.  Article 5(2) ECHR was also violated as the applicants were not provided with any information as to the legal or factual basis of their detention. The Italian authorities produced discharge decrees which it claimed were given to the applicants at the time of execution of repatriation, stating that they had entered the State illegally and that their removal had been ordered. The Court considered that these orders, even if provided, contained incomplete and inadequate information and in any event were not provided promptly enough. This also meant that their right to challenge their detention in Article 5(4) ECHR was ineffective.

With regard to the conditions of their detention, the Court noted that at that time there was a state of emergency in Lampedusa due to a wave of over 50,000 arrivals after the uprisings in Tunisia and Libya which placed many obligations on the Italian authorities as to rescue, medical care, reception and maintenance of public order. However this did not absolve Italy of its responsibility to ensure that detainees were kept in conditions compatible with respect for their human dignity, given the absolute and non-derogable nature of Article 3 ECHR. The majority held that there was conditions of detention at the Contrada Imbriacola reception centre constituted a violation of Article 3, but that there was no violation in respect of conditions on board the ships.

The applicants argued that they had been victims of collective expulsion contrary to Article 4 Protocol no. 4 ECHR on the basis of being summarily removed on the account of their nationality without an individual consideration of their personal situations. The Court considered that the discharge decrees made no reference to the personal circumstances of the individual, there had been no individual interview, many of those expelled with the applicants were also Tunisian and they were repatriated on the basis of simplified procedures under a bilateral agreement that had not been made public. As such, it concluded that the Italian authorities had not taken into account the individual circumstances of those involved contrary to Article 4 Protocol no. 4. Their recourse to challenge their collective expulsion was also contrary to Article 13 ECHR as it had no automatic suspensive effect to prevent their refoulement to Tunisia.

Based on an unofficial ELENA translation. 

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Effective remedy (right to)
Material reception conditions
Reception conditions
Right to remain pending a decision (Suspensive effect)