As I said yesterday, Hirsi is a fantastic judgment. It is ground-breaking not only for declaring interception-at-sea as currently practiced illegal on a number of grounds but also for potentially lightening the burden of proof which falls on applicants in return cases. But what did the Court say about reparation?
‘the Court considers that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated’ (para 211).
I had to read this twice. Is the Court really suggesting that the Italian Government seek formal assurances from Libya? This, in the very same judgment which concluded on a violation of Article 3 precisely because Libyan promises to respect human rights were found hollow … Of course, circumstances on the ground have changed dramatically since Italy entered agreements with General Gaddafi’s regime. Still, are the current Libyan authorities in a firm position to assure that the human rights of the applicants are respected?
The indication in Hirsi follows a nascent practice whereby the Court indicates to a respondent Government the type of measures which would be necessary in order for it to be able to deal with the systematic character of the denounced violation. It was made under the rubric of individual rather than general measures. Had it been a general measure, it could have been interpreted as signalling to Italy and other states that the Court would be minded to reach a verdict of violation whenever a returning state had not done its utmost to ensure that no ill-treatment would ensue, including through state assurances. This step would have been potentially promising, although assurances are far from a panacea (as the Court itself has recognized in some cases, including Saadi v. Italy). But the indication is given here as an individual measure. If we are really talking of reparation, surely the best way to put things back as they should always have been, would have been to have the applicants invited to come to Italy, so as to enable them to have any claim they would choose to make against expulsion duly examined. This is what Judge Pinto de Albuquerque, who appended a concurring opinion, thought. In his words, ‘The Italian Government has a positive obligation to provide the applicants with practical and effective access to an asylum procedure in Italy’. His was a lone opinion. It came at the end of a very long and principled reasoning which puts human rights at its centre and does not flinch from drawing the implications of what a human rights ethos requires, however costly these implications are.
If we put Judge Albuquerque’s opinion and the Court’s indication side by side, the latter starts to make more sense. Through it the Court is probably telling Italy, the Committee of Ministers and everybody else that Italy is not expected to offer all the applicants in Hirsi – as well as any other migrant she has ever intercepted or will intercept at sea in the future – access to a proper asylum procedure in order to be able to be considered Article 13 compliant. If this interpretation is correct, the Court’s indication would best be understood as a concession to state interests in a judgment which otherwise reminds states in no uncertain terms that their obligations under the Convention are neither negotiable, nor avoidable through extra-territorialization.
The concession to states implicitly sneaked in the indication made under Article 46 would be there in order to mitigate the effects of the judgment which would otherwise implies something like open borders if its logic was pushed to the end. In one sentence, the judgment implies that irregular migrants who seek asylum cannot be summarily refoulés. From this to the principle that they must be admitted into Europe, at least for the purpose of a refugee determination procedure, is but a small logical step. It is then easy to imagine that any migrant who would not otherwise be admitted in Europe will think of claiming asylum in order to get admission. And once the resulting ‘hordes of migrants’ are physically in Europe within the context of an asylum procedure, who is to say that they will ever leave, even if they fail to be granted refugee status?
Some judges might have been tempted to give more leeway to states in their control of unwanted migration than the indication made under Article 46 concedes. This, however, would have proved barely possible once the case was declared admissible. Let us recall that fifteen out of the twenty-four original applicants were actually granted refugee status as the proceedings were pending at Strasbourg. Any member of the Court who would have wished to grant states more than the concession hidden under Article 46 would have stumbled against the principle that Article 3 lays down an absolute prohibition of non-refoulement to ill-treatment.
The Court acknowledged ‘the burden and pressure’ the influx of migrants and asylum seekers placed on the States at the external borders of the European Union early in the judgment; it observed, however, that this could not absolve a State of its obligations under Article 3, given the absolute character of the provision (para 122). The absolute prohibition of refoulement to torture and/or ill-treatment is by now an unassailable element in the construction of the European human rights system. It is this element which pushed the Court to find a violation of Articles 3 and 13 of the Convention in Hirsi. Most importantly in my mind, any other verdict would have negated the fundamental value of the equality of all human beings and sent the message that for some people to be excluded from human rights protection is acceptable. It is not.
Such reasoning is of course miles apart from that presented by the Italian Government, including under Article 41 (reparation). In keeping with the logic it followed throughout its defence, the Government claimed that no damages should be paid to the applicants whose lives it had saved through its rescue operation (para 214). The Court disagreed. It awarded each of the applicants 15,000 euros under non-pecuniary damage. It added that these damages were to be held by the representatives in trust for the applicants (para 215). Through this mean, the Court solved in an easy and practical way the problem that most of the applicants had lost contact with their legal representative and would be unlikely to hear about the outcome of the judgment for a long time. (This is a common situation with irregular migration which has resulted, for example, in Muskhadzhiyeva v. Belgium not to be executable on the Article 41 front).
At this stage, it is worth noting that two of the original applicants were reported to have died in ‘circumstances unknown’. Their family will never benefit from the Hirsi ruling, for the Court followed its normal practice of striking the application out of its list in their respect since no heir or close relative had manifested the wish to pursue their case (para 57). Taking a more realistic view of the situation, four of the seventeen judges voted in favour of allowing the proceedings to continue in respect of these two applicants too (judgment’s operative part). Where the death of an applicant may be partly attributable to the human rights violation complained of, it would indeed make imminent sense for an exception to be made to the otherwise entirely reasonable practice generally followed by the Court in the event of the death of an applicant. Let us hope, therefore, that in time, the minority dissent in Hirsi will prove to have anticipated a change in the Strasbourg jurisprudence, as does not uncommonly happen.
The last part of the judgment’s operative part concerned costs and expenses. Under this heading, the Court awarded just over fifteen hundred euros to the legal representatives. I shall not try to characterize this amount, but I cannot help thinking that there must be a doctoral thesis waiting to be written taking as its starting point the costs awarded by the Court in order to research and document the way litigation is pursued in various countries and produce original insights about access to justice throughout the Council of Europe. Any prospective doctoral student, here is your chance.
One thing which I have not yet mentioned is that the case started in the Second Section. The decision to relinquish jurisdiction to the Grand Chamber has proved extremely well inspired, enabling Hirsi’s significant advances for the protection of the human rights of migrants, as highlighted in yesterday’s post, to carry the authority of a unanimous Grand Chamber judgment. One might presume that the move to the Grand Chamber may in part be attributable to the Second Section’s then President and now Vice-President of the Court, Judge Tulkens, who has repeatedly adopted a strong position in favour of the rights of migrants during her tenure at Strasbourg. This tenure comes to an end next September. We must hope that this departure will not affect the synergy which has recently enabled the Court to make very clear human rights pronouncements in the field of migration, with Hirsi a very good example of this trend.
*Marie-Bénédicte Dembour is a 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.