March 01, 2012
This post is written by Marie-Bénédicte Dembour. She is Professor of Law and Anthropology at the University of Sussex. She is the author of Who Believes in Human Rights? Reflections on the European Convention and currently preparing a monograph provisionally entitled Migrant First, Human When? Testing Human Rights in the European and Inter-American Courts.
Europe does not like the ‘irregular’ migrants who, typically originating from economically struggling and/or war-torn countries, arrive on her shores without any document – and certainly no visa – after long travels. She has devised more and more strategies to keep these people at bay. One of these is to persuade so-called transit countries to take back migrants intercepted at sea. An emblematic example of this strategy is a bilateral cooperation agreement which Italy and Libya signed in December 2007 and its Additional Protocol of February 2009, whereby Libya pledged to support the Italian authorities in their fight against clandestine immigration in exchange for infrastructure, training and money. From the perspective of the authorities, the cooperation was entirely successful. It led the Italian Minister of the Interior to report and boast to the Italian Senate in May 2009, for example, that thanks to the agreement 471 irregular migrants had been intercepted on the high seas and transferred to Libya earlier that month. From a human rights perspective, this kind of strategy is disastrous from many various reasons, not all of which can be detailed in this blog.
Hirsi Jamaa and Others v. Italy is the first case in which the European Court of Human Rights delivers a judgment on interception-at-sea. In the present context the latter term is a short-hand for referring to the enforced return of irregular migrants to the point of departure of their attempted Mediterranean crossing, without any individual processing, let alone examination of asylum claims. Unanimously, the Grand Chamber found a violation of Article 3 ECHR prohibiting inhuman and degrading treatment on a double count (risk of ill-treatment in Libya and risk of repatriation from Libya to countries where ill-treatment is rife), a violation of Article 4 of Protocol no. 4 prohibiting collective expulsion and a violation of Article 13 ECHR guaranteeing a domestic remedy for any arguable complaint of a violation of the Convention. These verdicts, reached by the Grand Chamber unanimously on 23 February 2012, undoubtedly put into question the kind of bilateral and multilateral agreements which have been signed by European states in the last decade or so in order to fight clandestine immigration, not to mention the fact that they indirectly require major aspects of European migration policy to be revised.
The applicants in Hirsi were eleven Somali nationals and thirteen Eritrean nationals who had been part of a group of about two hundred individuals trying to reach Italy aboard three vessels crossing the Mediterranean from Libya. On 6 May 2009, as they were within the Maltese Search and Rescue Region of responsibility, they were intercepted by the Italian police and coastguard, transferred onto Italian military ships and, ten hours later, handed over to the Libyan authorities in the Port of Tripoli. Three weeks later, their application was lodged at Strasbourg. This was obviously a crucial case for the rights of irregular migrants, and the following organizations were allowed by the Court to present written observations: the UNHCR, Human Rights Watch, the Columbia Law School Human Rights Clinic, the Aire Centre, Amnesty International and the International Federation for Human Rights (acting collectively) as well as the UNHCHR. The stakes were obviously high for the Italian state too – as well as for the European Union’s migration policy, even if the contested event resulted from a bilateral agreement to which the EU is not party.
The Italian state started by contesting that the case should be declared admissible. Apart from pleading non-exhaustion of national remedies, Italy alleged that the majority of the powers of attorney signed by the applicants contained formal defects (para 45). This point had proved fatal two years ago in the first case of this kind, Hussun and Others v. Italy. (In Hussun, the applicants were eighty-four irregular migrants who had landed in Lampedusa; problems with their identity and signatures, many of which were attributable to one same individual, had led the Court to strike the case out of its list). Elsewhere I have documented the difficulties lawyers face in defending irregular migrants in detention. These difficulties are multiplied when migrants are removed to a place like Libya. Presumably the fact that Hirsi emerged at all is due to the UNHCR having been able to act as an intermediary between the applicants and their legal representatives. The Court understood these problems. It stated that it would consider valid a simple written authority as long as it was not shown that it was made without the applicant’s understanding and consent (para 52). This may prove a crucial opening for future cases.
The Italian government had the cheek to argue that the applicants had been rescued in the high seas because they were in distress, so that they had never come under Italian jurisdiction (para 65). The Court responded that the applicants, who had indeed never reached Italian soil, had nonetheless been transferred to Italian military ships. They were thus ‘under the continuous and exclusive de jure and de facto control of the Italian authorities’ (para 81). No other conclusion could have been expected in the light of the Court’s recent case law on extra-territorial jurisdiction.
Turning to the merits of the complaints, concerning Article 3 ECHR, the Government argued that ‘the applicants had not adequately proved that they had been subjected to treatment allegedly in contravention of the Convention’ (para 92). It submitted that Libya was a safe host country which had ratified the ICCPR and the Convention against Torture (para 97) and which had ‘expressly undertook to comply with the principles of the UN Charter and the Universal Declaration of Human Rights’ in a treaty it had signed with Italy (para 98). The Italian Government described the application as ‘a political and ideological diatribe’ (para 100).
These arguments may appear risible after the Arab spring. It is important to measure, however, the difficulties which applicants threatened with deportation from a European country (the most common scenario in the Strasbourg migrant case law) encounter as they seek to demonstrate that their removal would subject them to a personal risk and thus contravene Article 3. It is therefore worthwhile to review in some details the response of the Court to the Italian Government’s arguments.
The Court took note of ‘the numerous reports by international bodies and non-governmental organisations [which] paint a disturbing picture of the treatment meted out to clandestine immigrants in Libya at the material time’ (para 123). Significantly the Court did not go through these reports in detail, simply summarizing their major findings. This way of proceeding is very different from the approach in other cases, notably Sufi and Elmi v. the United Kingdom. Were it to prove enduring, it would greatly facilitate the task of legal representatives by lightening the high burden of proof currently placed onto them, as alluded in the above paragraph. The Court also stressed that ‘Italy [could not] evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya’ (para 129). While the Italian Government had assumed that Libya was, at the material time, a safe destination for migrants intercepted on the high seas, the Court stated that it was ‘bound to observe that the existence of domestic laws and the ratification of international treaties [do not in themselves] ensure adequate protection against the risk of ill-treatment’ (para 128). According to the Court, ‘the Italian authorities knew or should have known that, as irregular migrants, [the applicants] would be exposed in Libya to treatment in breach of the Convention’ (para 131). The Court found a violation of the Convention of Article 3 on this count, without any recourse to information detailing the exact fate which the applicants actually met. This is a crucial point. All but six of the applicants had lost contact with their legal representatives who thus would not have been in a position to provide this kind of precise, individual information. The Court’s relaxation of the standard of proof it requires in Article 3 return cases, which was already noticeable in M.S.S. v. Belgium and Greece, must be welcomed. Without it, the most serious violations of the Convention are most likely to be out of the Court’s denunciation reach, for lack of evidence related to particular individuals who can nonetheless be presumed to have met the fate which is known, and widely reported, to generally befall people in their situation.
The Court also brushed aside as irrelevant the allegation by the Italian state (but disputed by the applicants) that none of them had requested international protection on board the military ships. The Court considered that ‘it was for the national authorities, faced with a situation in which human rights were being systematically violated … to find out about the treatment to which the applicants would be exposed after their return’ (para 133). In other words, it is not just in the face of formal requests for asylum that the obligation of non-refoulement arises. This has the potential of considerably enlarging the obligation of protection. It seems that there will now be a violation of the Convention in case of enforced return to treatment contrary to Article 3 as long as the risk of such a treatment is ‘sufficiently real and probable’ (para 136), whether or not the applicant has notified this risk to the deporting authorities, as long as these authorities should have been aware of the risk. We are decidedly a long way away from the idea that the only risk which can engage Article 3 is one of individualized persecution (as under the jurisprudence started with Vilvarajah and Others v. the United Kingdom twenty years ago).
The Court found a second violation of Article 3 on account of the fact that the applicants were exposed to the risk of arbitrary repatriation to Eritrea and Somalia. The fact that none of the applicants appear to have been actually returned to these countries was immaterial; it was the existence of the risk of repatriation at the time of the return which mattered. This is because the Court saw it as its task ‘not to rule on the violation of the Convention in the event of repatriation of the applicants, but to ascertain whether there were sufficient guarantees that the parties concerned would not be arbitrarily returned to their countries of origin, where they had an arguable claim that their repatriation would breach Article 3 of the Convention’ (para 148). The Court referred to its recent ruling in Sufi and Elmi which demonstrated such an arguable claim existed as regards Somalia; it referred to the UNHCR and Human Rights Watch (without details) as regards Eritrea. This acceptance that a risk of a violation of Article 3 exists without requiring that it be proved beyond reasonable doubt is again welcomed.
For the second time in its history (the first being Conka v. Belgium), the Court found a violation of Article 4 of Protocol no. 4 which prohibits the collective expulsion of aliens. This conclusion is supported by a long reasoning which suggests that although the seventeen judges who formed the Grand Chamber agreed on the outcome, they may not have agreed on its foundation. Here suffice it to note one determinant factor: the Italian authorities had neither subjected the applicants to an identification procedure nor carried out any form of examination of the individual situation of the applicants before returning them (para 185). Let us note in passing that the Court did not specifically rule upon the applicants’ allegation – denied by Italy – that they had been enticed into the military ships by deception, namely, the Italian military telling them they were going to be taken to Italy. (By contrast, in Conka, the deception was established as it was in writing – a letter inviting the applicants to the police station supposedly as part of the procedure to regularise their stay).
The Court finally found a violation of Article 13 (as a result of which the applicants could not be said to have failed to exhaust domestic remedies, as these did not exist). The Italian Government had candidly argued that ‘because the events in the instant case had taken place on board ships, it had been impossible to guarantee the applicants the right of access to a national court’ (para 191). This of course is exactly the problem! Migrants travel in so-called ‘mixed flows’ which comprise individuals ‘merely’ seeking to improve their economic lot but also other individuals in need of international protection (if one accepts the ethically disturbing underlying logic of this distinction). By the time the Court delivered its judgment, fifteen of the twenty-four applicants had been granted refugee status (fourteen by the office of the UNHCR in Tripoli, one in Italy where he had returned ‘illegally’); two applicants were awaiting a response to their request for international protection in Switzerland. The applicants were all returned to Libya without Italy having given them access to an effective asylum procedure conducted by a competent authority or a fortiori any procedure which would have checked the legality of their removal more broadly (para 205). The Italian Government submitted that the applicants could have brought criminal proceedings in Italy against the responsible military authorities – and could have done so from Libya. The Court did not scorn this idea for its lack of realism. It did, however, stress that a posteriori criminal proceedings would have failed to put a stay to the execution of the refoulement measure (para 206). This lack of suspensive effect meant that the applicants had had no remedy available to them satisfying the requirements of Article 13.
In case this needed to be spelled out, this conclusion on Article 13 puts into question the very idea and practice of intercepting irregular migrants in the high seas and summarily returning them to their point of embarkation. Taken literally, Hirsi is exclusively directed at Italy. (Interestingly, the Court does not cite in part III of its judgment – listing relevant European law – the European Pact on Immigration and Asylum adopted by the Council of the European Union in 2008 which, by contrast, is referred to by the Italian Government (para 94)). Let us not be fooled, however. Like M.S.S. last year in respect to Dublin II, Hirsi has enormous implications for EU policy, including its Frontex operations. This is the more so since Hirsi was adopted by the Grand Chamber and unanimously.
Hirsi has undoubtedly much to offer for the defence of irregular migrants. As such it deserves the qualification of ground-breaking. Its ruling on reparation, however, is strange, to say the least, and makes clear that the Court is not ready to go all the way in the protection of migrants. This can be contrasted to the resolutely principled concurring opinion by Judge Pinto de Albuquerque. This will be the object of a separate blog. Rendez-vous tomorrow.