Khlaifia v. Italy (no. 16483/12, GC) [Articles 5(1), 5(2), 5(4) 3, 13 and 4 Protocol No. 4], 15 December 2016

Thursday, December 15, 2016

On the 15th December the Grand Chamber of the ECtHR gave its ruling in the case of Khlaifia v. Italy that concerns the holding, in a reception centre on the island of Lampedusa then on ships in Sicily, of irregular migrants who arrived in Italy in 2011 following the “Arab Spring” events in their country, and their subsequent removal to Tunisia. The case was referred to the Grand Chamber at the request of the Italian Government following the judgment of 2ndSection of the Court finding violations of Articles 5, Article 3, Article 4 of Protocol No. 4 and Article 13 of the Convention.
The Grand Chamber confirms that Italy breached Article 5(1) of the Convention as the provisions applying to the detention of irregular migrants were lacking in precision. It indicates that legislative ambiguity has given rise to numerous situations of de facto deprivation of liberty and the fact that placement in Contrada Imbriacola first reception centre (CSPA) is not subject to judicial supervision cannot, even in the context of a migration crisis, be compatible with the aim of Article 5 of the Convention: to ensure that no one should be deprived of his or her liberty in an arbitrary fashion. The Court also finds a violation of Article 5(2) as the applicants had not been duly informed of the reasons for deprivation of their liberty. Finally, the Court finds a violation of Article 5(4) as there was no remedy in the Italian legal system whereby the applicants could obtain a judicial decision on the lawfulness of their deprivation of liberty.
The Court finds that there has been no violation of Article 3 of the Convention in respect of the conditions of detention in either the CSPA or on board the ships, since the treatment the applicants complained of did not exceed the level of severity required for it to fall within the provision. It also holds that there has been a violation of Article 13 taken together with Article 3 of the Convention as there was no effective remedy in respect of the complaint concerning the applicants’ conditions of detention.
The Court holds that there is no violation of Article 4 of Protocol No. 4 in the present case. It reiterates that the word “expulsion” should interpreted broadly and finds that the removal of the applicants from Italy to Tunisia against their will constitutes an “expulsion” within the meaning of Article 4 of Protocol No. 4. However, the Court holds that the applicants underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion. The virtually simultaneous removal of the three applicants may be explained as the outcome of a series of individual refusal-of-entry orders, and does not lead to the conclusion that their expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 to the Convention, according to the Court.
Finally, the Court finds that there is no violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4 as the lack of suspensive effect of a removal decision does not in itself constitute a violation of Article 13 of the Convention where, as in the present case, the applicants do not allege that there is a real risk of a violation of the rights guaranteed by Articles 2 or 3 in the destination country.
Please find the AIRE Centre and ECRE’s intervention here.

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Effective access to procedures
Effective remedy (right to)
Inhuman or degrading treatment or punishment
Right to remain pending a decision (Suspensive effect)