A Template For Protecting Human Rights During The ‘Refugee Crisis’? Immigration Detention In Addition To The Expulsion Of Migrants Inwards A Recent Ecthr K Bedchamber Ruling

Stefano Zirulia, Lecturer, University of Milano* (main text on ECHR) too Professor Steve Peers (Annex on European Union law aspects)

* Stefano Zirulia participated inwards the proceedings earlier the ECHR equally counsel for the applicants

Introduction

On the 15th of Dec 2016 the European Court of Human Rights Grand Chamber handed downward its judgment inwards the representative of Khlaifia too Others v. Italy, which partially reversed the Chamber ruling issued on the 1st of September 2015. The representative is nearly immigration detention at the Italian borders (including the isle of Lampedusa) too the expulsion of aliens from Italy to Tunisia. Whilst the events took house inwards 2011, during that peculiar fourth dimension which was inwards the immediate aftermath of the Arab Spring, the issues raised earlier the Court past times the applicants too the regulation outlined past times the judgments appears relevant to the electrical flow refugee crisis too its management past times the European Union Institutions too Member States.

1. The Facts

The applicants are 3 Tunisian nationals who, exactly similar thousands of migrants every year, attempted to larn inwards Europe past times crossing the Mediterranean Sea from northern Africa to the Italian coast on board rudimentary vessels. The events took house inwards September 2011, when the flux of migrations was especially high due to the revolutionary riots (so-called Arab Spring), which had exactly taken house inwards some North African countries. While heading to Lampedusa, the applicants were intercepted past times the Italian coastguard too brought to the “Early Reception too Aid Centre” (“Centro di Soccorso e Prima Accoglienza” or “CSPA”) located on the island. They were kept at the centre for several days: the outset applicant from the 17th to the 20th of September; too the minute too the 3rd applicants from the 18th to the 20th of September. When a burn downward partially damaged the centre, the migrants were outset taken to a sports facility too and so they escaped too proceeded to displace to a greater extent than or less the island. On the 22nd of September, after having been stopped past times the police, the applicants were transferred past times storey to Palermo (Sicily), where they were confined on board ships moored inwards the harbour for a few days, together alongside hundreds of other migrants. On the 27th of September, dozens of these migrants, including the minute too 3rd applicants, were taken past times charabanc from the ships to the Palermo airport, where they briefly met the Tunisian Consul too at in i lawsuit afterwards were returned to Tunisia. On the 29th of September, the outset applicant followed the same physical care for too was returned to Tunisia equally well.

2. The Application to the ECHR too the Chamber Judgment

The applicants direct maintain alleged that Italian Government violated several of their rights equally provided past times the ECHR. Firstly, their correct to liberty (Article 5 ECHR) was violated because the Lampedusa reception centre too the ships had been used equally detention centres without whatsoever legal footing (Article 5 § 1), without providing whatsoever information to the detainees (Article 5 § 2), nor granting them access to judicial review (Article 5 § 4). Secondly, their correct non to live subjected to inhuman too degrading handling (Article 3) was violated on trouble concern human relationship of the overcrowding too the misfortunate wellness too hygiene weather condition inwards which they were held both inwards the reception centre too on board the ships. Thirdly, their correct non to live subjected to collective expulsion (Article 4 of Protocol No. 4 to the Convention) was violated because their forced returns had been decided according to a bilateral understanding signed betwixt Italy too Tunisia inwards Apr 2011, i.e. on the sole footing of their nationality, without whatsoever consideration of their private situations. Finally, their correct to an effective remedy (Article 13), taken together alongside Article 3 too Article of 4 Protocol No. 4 was violated because they could neither effectively challenge earlier a national courtroom the weather condition of their detention nor the homecoming procedure.

The Chamber judgment was handed downward on the 1st of September 2015. The Court unanimously found violations of Article 5 alongside regard to § 1, § 2 too § 4. As to Article 3, the Court bulk (five votes to two) found a violation inwards relation to the weather condition inwards which the applicants were held at the Lampedusa reception centre, but non inwards relation to those weather condition inwards which the applicants were held on board the ships moored inwards Palermo. The same bulk also pointed out a serial of factors indicating that the expulsion was collective inwards nature and, thus, inwards breach of Article 4 of Protocol No. 4 (see § 156: «the refusal-of-entry orders did non comprise whatsoever reference to the personal situations of the applicants; the Government failed to create whatsoever document capable of proving that private interviews concerning the specific province of affairs of each applicant had taken house prior to the issuance of the orders; a large number of individuals of the same origin, to a greater extent than or less the fourth dimension of the facts at issue, were subjected to the same resultant equally the applicants; too the bilateral agreements alongside Tunisia, which direct maintain non been made public, provided for the homecoming of unlawful migrants through simplified procedures, on the footing of the mere identification of the somebody concerned past times the Tunisian consular authorities»). Finally, in i lawsuit to a greater extent than the bulk held that at that topographic point had also been a violation of Article thirteen taken together alongside Article 3, due to the lack of whatsoever effective remedy to challenge the weather condition of confinement; too some other breach of Article thirteen taken together alongside Article 4 of Protocol No. 4, because the refusal-of-entry orders issued against the applicants expressly stated that the lodging of an appeal would non direct maintain suspended their enforcement.

3. The Grand Chamber Judgment

In Feb 2016, the Italian Government asking of referral to the Grand Chamber was accepted. The populace hearing took house on the 22nd of June 2016 too the finally judgment was delivered on the 15th of Dec 2016. The Grand Chamber confirmed the violations of Article 5 § 1, § 2 too § 4 too confirmed a violation of Article thirteen taken together alongside Article 3.

3.1. Statements Concerning Immigration Detention

Just equally the Chamber had previously determined, the Grand Chamber found unanimously that at that topographic point had been violations of Article 5 § 1, § 2 too § 4.

The Government had objected arguing that the applicants were non deprived of their liberty (and thus the Court lacked jurisdiction ratione materiae nether Article 5), since neither the Lampedusa reception centre nor the ships moored inwards Palermo were designed for detention but rather to furnish outset assistance too assistance (in damage of wellness too hygiene) to the migrants for the fourth dimension necessary to position them too to run along alongside their homecoming (§§ 58-60). The Court rejected the declaration past times recalling that, «in gild to determine whether a somebody has been deprived of liberty, the starting-point must live his or her concrete situation, too trouble concern human relationship must live taken of a whole arrive at of criteria such equally the type, duration, effects too mode of implementation of the mensurate inwards question» (§ 64). With regard to the acquaint case, the Court began past times noting that it was non inwards dispute betwixt the parties, too it was also confirmed past times reports issued past times the Parliamentary Assembly of the Council of Europe too the Italian Senate’s Special Commission for Human Rights, that the reception centre was nether surveillance too that the migrants were prohibited from leaving the centre (§ 65), too that the same happened alongside the ships, which the Government considered “a natural extension of the reception centre” (§ 66-69). Additionally, the Court noted that the deprivation of liberty was non insignificant inwards duration: indeed, summing upward the menses spent inwards the Lampedusa reception centre too the menses on board the ships, the confinement lasted for nearly twelve days inwards the representative of the outset applicant too nearly nine days inwards that of the minute too 3rd applicants (§ 70). Finally, the Court emphasized that neither the classification of the confinement nether domestic law, nor the authorities’ alleged aim to aid the applicants too ensure their safety, could modify the nature of the constraining measures imposed. Indeed, «even measures intended for protection or taken inwards the involvement of the somebody concerned may live regarded equally a deprivation of liberty» (§ 71).

Having stated that Article 5 applied to the case, the Court concluded that its provisions had been violated past times the Italian Government. With regard to Article 5 § 1, fifty-fifty if the detention of the applicants nether the provision of missive of the alphabet (f) was to command the liberty of aliens inwards an immigration context (§ 96), the Court noted that it was devoid of whatsoever legal basis. According to Italian immigration law, immigration detention is solely possible within dedicated centres (the CIE, “Centres for Identification too Expulsion of Aliens”) too nether sure strict circumstances (for instance, where a refusal-of-entry mensurate or an expulsion cannot live implemented immediately, because it is necessary to furnish assistance to the alien, to behavior additional identity checks, or to await for move documents or the availability of a carrier): inwards the acquaint case, the Government itself admitted that the applicants had non been held within a CIE because those weather condition were non met, thus conceding that their detention was non authorized nether Italian law (§ 98). Furthermore, the Court stated that the bilateral understanding for readmission of aliens signed betwixt Italy too Tunisia could non furnish a proper legal footing for detention, inwards a higher house all because its total text had non been made populace and, thus, it was non accessible to the applicants (§ 102-103).

With regard to Article 5 § 2, having already found that the applicants’ detention had no clear too accessible legal footing inwards Italian law, the Court failed to encounter «how the regime could direct maintain informed the applicants of the legal reasons for their deprivation of liberty or thus direct maintain provided them alongside sufficient information to enable them to challenge the grounds for the mensurate earlier a court» (§ 117); to live clear, the Court pointed out that «information nearly the legal status of a migrant or nearly the possible removal measures that could live implemented cannot satisfy the require for information equally to the legal footing for the migrant’s deprivation of liberty» (§ 118).

With regard to Article 5 § 4, the Court recalled that, where detainees are non informed of the reasons for their deprivation of liberty, their correct to appeal against their detention is deprived of all effective gist (§ 132). Therefore, the Court considered that its finding nether Article 5 § 2 constituted sufficient grounds to conclude that the Italian legal organization did non furnish the applicants alongside an effective remedy to challenge the lawfulness of their deprivation of liberty (§ 133). It must also live emphasized that, inwards the role of the judgment addressing the number of Article 5 § 1, the Court already pointed out the unavailability of effective remedies past times arguing that, since the Lampedusa reception centre too the boats were formally regarded as  reception facilities, the applicants could non direct maintain enjoyed the safeguards of habeas corpus applicable to placement within the Italian detention centres for migrants (the CIE), i.e. the validation past times an administrative determination dependent area to review past times a competent courtroom (§ 105).

3.2. Statements Concerning Inhuman too Degrading Treatment

With regard to Article 3, the Grand Chamber confirmed the Chamber judgment equally to the weather condition on board the ships too reversed it alongside regard to the Lampedusa reception centre, thus declaring that inwards neither province of affairs did the applicants endure inhuman or degrading treatment.

As a full general statement, the Grand Chamber pointed out that, without prejudice to the absolute graphic symbol of Article 3 too the related regulation that an increasing influx of migrants cannot absolve a State of its obligations nether that provision, all the same «it would sure as shooting live artificial to examine the facts of the representative without considering the full general context inwards which those facts arose» (§ 185). The Court took into consideration that the province of affairs inwards 2011 was particular (§ 180) too thus decided to brand its assessment bearing inwards hear that «the undeniable difficulties too inconveniences endured past times the applicants stemmed to a important extent from the province of affairs of extreme difficulty confronting the Italian regime at the relevant time» (§ 185).

As to the confinement inwards Lampedusa, the Grand Chamber found that, having considered the province of affairs taken equally a whole, equally good equally the specific circumstances of the applicants’ case, the handling they complained of did non laissez passer on the degree of severity required for it to autumn within Article 3 of the Convention (§§ 190-198). Among other factors, the Court specifically stressed that, «even though the number of foursquare metres per somebody inwards the centre’s rooms has non been established […] the liberty of motility enjoyed past times the applicants inwards the CSPA must direct maintain alleviated inwards part, or fifty-fifty to a important extent, the constraints caused past times the fact that the centre’s maximum capacity was exceeded» (§ 193). Moreover, the Grand Chamber emphasized that the applicants had been confined within the reception centre solely for 3 too 4 days respectively, too that their cases could live distinguished from those where the violation was recognized inwards spite of the curt duration of the confinement (§ 195-196).

As to the confinement on board the ships moored inwards Palermo the Grand Chamber pointed out that the applicants had non presented whatsoever objective proof of their allegations (overcrowding too extreme wellness too hygiene conditions) too it refused their asking to shift the burden of proof upon the Government: «the burden of proof inwards this expanse may live reversed where allegations of ill-treatment at the hands of the police clit or other similar agents of the State are arguable too based on corroborating factors, such equally the existence of injuries of unknown too unexplained origin» (§ 206). Furthermore, the Grand Chamber attached «decisive weight» to the fact that the Government had produced earlier it a judicial determination rendered past times an Italian courtroom contradicting the applicants’ account. Although the applicants criticized this determination alongside regard to its evidentiary footing (they highlighted that the determination was mainly based on the statements of a fellow member of the Italian Parliament to the press too non reiterated at the hearing, too that the police clit had been acquaint when the fellow member of the Parliament visited the ships), the Court ruled that mere speculation cannot telephone phone into enquiry the assessment of the facts past times an independent domestic courtroom (§§ 207-208).

3.3. Statements Concerning Collective Expulsions

By a vote of 16 to one, the bulk of the Grand Chamber reversed the ruling of the Chamber too declared that no violation of Article 4 of Protocol No. 4 to the Convention had occurred.

The Grand Chamber outset recalled that, according to its case-law, collective expulsion is to live understood equally «any mensurate compelling aliens, equally a group, to run out a country, except where such a mensurate is taken on the footing of a reasonable too objective exam of the detail representative of each private alien of the group» (§237). The role of this provision is inwards fact «to forbid US from beingness able to take a sure number of aliens without examining their personal circumstances too thus without enabling them to lay forrad their arguments against the mensurate taken past times the relevant authority» (§ 238).

With regard to the acquaint case, the Court noted that, on the i hand, it was undisputed that the applicants underwent identification on ii occasions (i.e. at in i lawsuit after their arrival, past times the Italian regime at the reception centre; too earlier they boarded the planes for Tunis, past times the Tunisian consul); on the other hand, the parties disagreed alongside regard to the weather condition of the outset identification. The applicants alleged that the Italian regime had but recorded their identities too fingerprints, without taking their personal situations into account, spell the Government instead argued that the identification had consisted of a genuine private interview, carried out inwards the presence of an interpreter or cultural mediator, next which the regime filled out an “information sheet” containing personal information too whatsoever circumstances specific to each migrant. Although the Government was unable to create the applicants’ “information sheets”, the Court accepted its version, considering it a «plausible explanation» that those documents had been destroyed inwards the burn downward at the reception centre (§ 246).

Additionally, the Grand Chamber stated that «Article 4 of Protocol No. 4 does non guarantee the correct to an private interview inwards all circumstances; the requirements of this provision may live satisfied where each alien has a genuine too effective possibility of submitting arguments against his or her expulsion, too where those arguments are examined inwards an appropriate mode past times the regime of the respondent State» (§ 248). Noting that the applicants remained betwixt nine too twelve days inwards Italy, the Court concluded that «during that non insignificant menses of fourth dimension the applicants had the possibility of drawing the attending of the national regime to whatsoever circumstance that mightiness acquit on their status too title them to rest inwards Italy» (§ 249). Moreover, the Court emphasized that, earlier boarding the planes for Tunis, the applicants were received past times the Tunisian Consul, too that this afterward banking concern tally «gave them a finally adventure to heighten arguments against their expulsion» (§ 250).

The Grand Chamber too so addressed other factors which the Chamber had considered relevant to testify the collective nature of the expulsion, i.e. the fact that the refusal-of-entry orders had been drafted inwards comparable terms, solely differing equally to the personal information of each migrant, too that a large number of aliens of the same rootage had been expelled at the relevant time. In this regard, the Grand Chamber referred to representative law according to which such scenarios practise non automatically Pb to a violation if each somebody concerned had been given the chance to brand arguments against his expulsion to the competent regime on an private footing (§§ 239 too 251).

The Court too so farther noted too called into enquiry the usefulness of an private interview inwards the acquaint case, past times observing that «the applicants’ representatives, both inwards their written observations too at the populace hearing, were unable to request the slightest factual or legal Earth which, nether international or national law, could direct maintain justified their clients’ presence on Italian territory too preclude their removal» (§ 253).

Finally, the Court considered it «unnecessary […] to address the enquiry whether, equally the Government argued, the Apr 2011 understanding betwixt Italy too Tunisia, which has non been made public, tin live regarded equally a “readmission” understanding within the important of the Return Directive, too whether this could direct maintain implications nether Article 4 of Protocol No. 4» (§ 255).

3.4. Statements Concerning the Availability of Effective Remedies at National Level

The Grand Chamber confirmed the Chamber judgment on the violation of Article thirteen taken together alongside Article 3, but reversed it alongside regard to a violation of Article thirteen taken together alongside Article 4 of Protocol No. 4.

As to inhuman too degrading treatments, the Grand Chamber observed that the Government did non request whatsoever remedy past times which the applicants could direct maintain complained nearly the weather condition inwards which they were held both inwards Lampedusa too on board the ships. For instance, an appeal to the competent courtroom against the refusal-of-entry orders would direct maintain served solely to challenge the lawfulness of their removal (§ 270).

As to collective expulsion, given that a remedy was available nether national law, the Court examined whether the fact that such remedy did non furnish an automatic suspensive number of the removal gild constituted itself a violation of Article 13. While the Chamber answered this enquiry inwards the affirmative, the Grand Chamber held the opposite opinion: relying on the case-law De Souza Ribeiro v. France, Čonka v. Kingdom of Belgium too Hirsi Jamaa too Others v. Italy, the Grand Chamber stated that an obligation for US to furnish for such a remedy (i.e. an appeal alongside automatic suspensive effect) solely arises «where the somebody concerned alleges that the enforcement of the expulsion would break him or her to a existent peril of ill-treatment inwards breach of Article 3 of the Convention or of a violation of his or her correct to life nether Article 2, on trouble concern human relationship of the irreversible nature of the harm that mightiness occur if the peril of torture or ill-treatment materialised» (§ 276). Given that inwards the acquaint representative the applicants did non claim whatsoever of those risks, the Court concluded that the absence of an automatic suspensive number did non entail a violation of Article thirteen taken together alongside Article 4 of Protocol No. 4.

4. Comment

Due to its compass too abundance of content, the Khlaifia too Others judgment deserves to a greater extent than thorough deliberation than that which follows. However, it is worthwhile to highlight herein some of the strengths too weaknesses, which arise inwards its interpretation. An Annex summarises the implications for interpretation of European Union law inwards this field.

With reference to rulings relating to Article 5, the judgment represents a major footstep forrad inwards the physical care for of improving the protection for those people, fifty-fifty today, who are crossing the European borders despite non having whatsoever valid entry documentation. Suffice it, inwards this regard, to refer to Oct 2016, when Amnesty International released a ruled that the ECtHR’s interpretation of ‘detention’ is relevant for applying the European Union law on the European Arrest Warrant.

Secondly, the interpretation of ‘lawfulness’ of detention nether the ECHR is also relevant, given that the European Union legislation requires such detention to live lawful equally well.  

Thirdly, the insistence that judicial command of detention is essential 'even inwards the context of a migration crisis' makes clear that at that topographic point is no ‘crisis’ excuse to avoid judicial review of migration or asylum detention (for the most recent ECJ representative law on this issue, encounter tidings here). The ruling on the breach of Article 5(4) ECHR regarding judicial review follows from the breach of Article 5(2), too is relevant to the interpretation of Article 9(3) of the reception weather condition Directive too Article 15(2) of the Returns Directive.

Fourthly, equally for the breach of Article 5(2) ECHR because the migrants were non told why they were detained (it beingness irrelevant that they know they were entering illegally) confirms the wording of Article 9(4) of the reception weather condition Directive, but adds to the wording of Article 15(2) of the Returns Directive, which contains no limited requirement to inform.

Fifth, the ruling that at that topographic point was no breach of Article 3 equally regards weather condition inwards either reception centres or ships, giving states some latitude inwards the context of the migration crisis, is relevant to the interpretation of the rules inwards the reception weather condition Directive too the Returns Directive on the weather condition of detention.

Sixth, the Returns Directive too the asylum procedures Directive practise non ban collective expulsion explicitly, but it is implicit from the requirement of private decision-making too the obligation to comply alongside the European Union Charter of Rights, which bans collective expulsion expressly. The ECtHR judgment is thus relevant inwards that it confirms that the ban on collective expulsion also applies if US define it equally a refusal of entry, but also equally regards the ruling that the ECHR is non breached inwards the absence of private interviews equally long equally they tin brand a representative against expulsion. This falls good below the touchstone inwards the asylum procedures Directive equally regards the asylum process, too also likely below the ‘right to live heard’ guaranteed past times the ECJ representative law regarding irregular migrants too the Returns Directive.

Seventh, the breach of Article thirteen ECHR equally regards the lack of an effective remedy regarding detention weather condition could live relevant to European Union law. Although a remedy on this number is non expressly mentioned inwards Article 10 of the reception weather condition Directive or Article 16 of the Returns Directive, it follows from Article 47 of the Charter (the ‘effective remedies’ clause) that such a remedy must live available.

Finally, the compliance alongside Article thirteen ECHR equally regards the lack of a correct to of a correct of suspensive number of an appeal equally at that topographic point was no allegation of a peril of breaching Articles 2 or 3 ECHR justifies the lack of suspensive number of a challenge to an expulsion nether the Returns Directive, except inwards special cases equally defined past times the ECJ. Conversely, it confirms that at that topographic point must live either suspensive number of an appeal or the possibility to asking such suspensive number inwards asylum cases, equally laid out inwards the procedures Directive.

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