Guest post by Denise Venturi, PhD Student in International Law, Scuola Superiore Sant’Anna (Italy) and KU Leuven (Belgium)
On 15 December 2016 the Grand Chamber of the European Court of Human Rights (ECtHR) gave its much awaited ruling in the case Khlaifia and Others v Italy. The judgement follows a 2015 decision of the Second Section of the ECtHR that, in particular, found Italy – for the third time after Hirsi Jamaa and Others v Italy and Sharifi and Others v Italy and Greece – in breach of Article 4 of Protocol 4 to the European Convention on Human Rights (ECHR). The Chamber judgement was warmly welcomed by human rights advocators – and, besides, featured also in the Top Three of this blog’s poll for Best ECtHR Judgement for 2015 – as it upheld considerably the protection of migrants’ fundamental rights amidst the so called ‘refugee crisis’ in Europe.
It is questionable, however, whether the subsequent Grand Chamber’s ruling has been able to keep up the expectations raised by the first pronouncement of the Strasbourg Court. Due to the wealth of issues considered, it is not possible to conduct an in-depth examination of the Grand Chamber’s decision. Thus, this blog post is primarily aimed at providing only a concise analysis by focusing on the differences between the approach adopted by Strasbourg Court in the two judgements delivered in the Khalifia case.
The facts and the Chamber’s ruling
The facts of the case occurred during the Arab Spring and concern three Tunisian nationals who, while trying to reach Italian shores, were intercepted by the Italian coastguard and transferred to the early reception centre (CSPA) on the island of Lampedusa. After a violent riot in the centre and a demonstration by migrants in the streets of Lampedusa, the applicants were transferred to Palermo. There, they were held in two harboured ships, together with other migrants, for several days. Before they were deported to Tunisia by plane, the applicants’ identities were recorded by the Tunisian Consul in accordance with a bilateral agreement in force between Italy and Tunisia. The applicants’ complaint gave the Strasbourg Court the opportunity to rule on some of the more contentious matters related to the protection of migrants’ rights.
In fact, the ECtHR Chamber found a violation of Article 5 paras. 1, 2 and 4 ECHR as for the detention in the Lampedusa centre and in the ships: of Article 3 regarding the conditions in which the applicants were held in the Lampedusa CSPA; and of Article 4 Protocol no. 4 on account that the expulsion was ‘collective in nature’, since the refusal-of-entry orders neither contained any reference to the individual situations of the claimants, nor had individual interviews with them taken place. Lastly, the Chamber also found a violation of the right to an effective remedy in relation to Articles 3 ECHR and 4 Protocol no. 4.
A step back by the Grand Chamber?
The positive note of the Grand Chamber’s ruling is that it corroborates, and reinforces, the Court’s position on the fundamental value of personal liberty. The Grand Chamber confirmed the Chamber’s decision as for Article 5 paragraphs 1, 2 and 4 ECHR. Unanimously, the judges stressed that legal certainty is a crucial principle when it comes to deprivation of liberty (para. 92) and national law needs to clearly establish the specific cases in which it can be ordered. More importantly, the Grand Chamber reminded States that these core obligations cannot be set aside ‘even in the context of a migration crisis’ (para. 106). Moreover, as also noted by Zirulia and Peers in their recent post, bilateral agreements (such as those in force between Italy and Tunisia) could not constitute a legal basis for detention, as they were not made public and hence not accessible to the applicants (paras. 102-103).
On a striking different page stands the partly dissenting opinion of Judge Dedov. Albeit agreeing on finding a violation of Article 5(1), his arguments start from States’ sovereignty to control their borders and the critical situation in which they find themselves when facing high migratory pressure. Judge Dedov observed that ‘the applicants had put themselves in an unlawful situation’ and stated that, in the context of mass arrivals, the obligation to limit the duration of the detention to the period ‘strictly necessary’ (para 104 of the judgement) to establish the migrants’ identity and lawfulness of their presence risks posing an excessive burden on States. Finally, he suggested that Italy has now an opportunity to amend its law, by establishing adequate procedural safeguards ‘for the purposes of any legitimate actions’ covered by Article 5(1)(f) ECHR, meaning deportation and prevention of unauthorised entry.
As for the allegations under Article 3 ECHR, the Grand Chamber endorsed only partially the conclusions of the Chamber, since it found that the conditions in the Lampedusa reception centre did not amount to inhuman or degrading treatment. To fully grasp the Court’s reasoning, the readers of this post are advised to read the Grand Chamber’s judgement (paras. 158-211), which tackles some core issues such as the seriousness of treatments contrary to Article 3; detention and overcrowding; and the burden of proof and evidence in ill-treatment cases.
For what matters here, two aspects need to be underlined. Firstly, in this context too, the ECtHR reiterated that an increasing influx of migrants cannot, per se, absolve a State of its obligations under Article 3 (paras. 184 and 185). At the same time, however, the Court conducted, so to say, a ‘reality check’ of the situation suffered by the applicants vis-à-vis the actual situation in which Italy found itself due to the migratory pressure at the time of the Arab Spring, following which it had declared a state of emergency (see paras. 178-183). In fact, the Grand Chamber affirmed that ‘it would certainly be artificial’ not to consider that the undeniable hurdles faced by the applicants originated from a ‘situation of extreme difficulty confronting the Italian authorities at the relevant time.’ (para. 185). However, one may ask whether such precarious situation was totally independent of Italy’s actions or inactions, and, most importantly, whether mass arrivals were totally impossible to predict and, thus, likely to preclude a proper organisation.
Secondly, with specific regard to the detention conditions in the Lampedusa CSPA, the Court argued a contrario from M.S.S. v Belgium and Greece. Namely, it observed that the applicants were not asylum seekers and, therefore, they ‘did not have the specific vulnerability inherent in that status’ (para. 194). Interestingly enough, the Chamber had instead considered the applicants vulnerable because they had undergone a ‘dangerous journey on the high seas’ (Chamber’s judgement at 135); a condition that outweighed the relatively short duration of the detention in the Lampedusa centre and had brought the Chamber to find a violation of Article 3. Conversely, the Grand Chamber too recalled that the applicants were in a weakened physical and psychological condition when held at the centre, due to the dangerous sea crossing (para 194). Nevertheless, according to its view, the applicants did not bear the burden of traumatic experiences that had justified the vulnerability approach adopted in M.S.S. v Belgium and Greece. Furthermore, the Grand Chamber also pointed out that the applicants did not belong to any of the categories traditionally regarded as vulnerable (such as minors), but they were young males without any particular health issue (para 194). This view was upheld also by Judges Sajó and Vučinić in their dissenting opinion to the Chamber’s judgement (para. 6) as well as by Judge Raimondi in his concurring opinion to the Grand Chamber’s decision (para. 5).
These arguments seem to corroborate the ECtHR’s nuanced approach to the notion of vulnerability, which on the one hand is inherent to all asylum seekers while, on the other hand, is attached to certain individuals because of specific conditions that put them in a more disadvantaged position. Besides, the Grand Chamber’s reasoning seems to give a hint on what vulnerability is not: being a healthy, young man, albeit with irregular status.
Finally, as for the violation of Article 4 Protocol 4 to the ECHR, the Grand Chamber overturned the Chamber’s conclusion. Like the latter, the Grand Chamber observed that the fact that migrants are issued with similar decisions does not automatically mean that the expulsion is collective, as far as each person concerned is given the ‘opportunity to put arguments against his expulsion […] on an individual basis’ (para. 154 of the Chamber’s decision and 239 of the Grand Chamber’s one). However, while in the first Khlaifia judgement the ECtHR found that the ‘mere introduction of an identification procedure is not sufficient in itself to rule out the existence of a collective expulsion’ (para. 156), in the present decision it stated that the applicants underwent two identification procedures (with the Italian authorities and the Tunisian consul) during which they would have been able to present arguments against their expulsion but they did not (paras. 247 and 250). In the Court’s view, the ‘relatively simple and standardised nature’ of the refusal-of-entry orders – which were merely based on the applicants’ nationality due to the bilateral agreement in force between Tunisia and Italy – could be explained by the fact the applicants did not allege any fear of being returned or any other legal impediment; they simply entered the Italian territory irregularly (para. 251). Such circumstance determines the Court’s reasoning also in rejecting the applicants’ complaint of a lack of an individual interview. In the ECtHR’s opinion, Article 4 Protocol 4 does not warrant an unfettered right to an individual interview, but only the effective possibility to submit arguments against deportation (para. 248). In the Court’s view, this connects to the point made previously, namely that the migrants did not raise any argument to challenge their expulsion, although they had occasions to do so. This situation, according to the ECtHR, does not qualify the expulsion as ‘collective’ in nature.
Yet, the Court’s conclusion on this aspect leaves several doubts and open questions behind. It appears to undermine the ECHR’s guarantees applicable to expulsion; if the right to an individual interview is not provided for by Article 4 Protocol 4, how can a collective expulsion be effectively forestalled? Such interpretation restricts the scope of this provision inevitably. Although it may be held that, in the present case, the applicants underwent an identification procedure (differently from Hirsi Jamaa and Others v Italy, see para 248) the ECtHR’s argument appears flawed. The procedural guarantee attached to Article 4 Protocol 4 entails a full and proper examination of each individual case to avoid an arbitrary expulsion, and applies irrespective of the applicants’ regular or irregular status. Moreover, its scope is not limited to the risk of violations under Articles 2 and 3 ECHR upon return, as the Court seems to deduce at para 277; otherwise it would be equivalent to the principle of non-refoulement (see on this point Zirulia and Peers). These remarks are well exposed in the only dissenting opinion on this aspect, that of Judge Serghides.
It is hard to say that the Grand Chamber’s ruling has met the expectations it was awaited with. Although the ECtHR is careful in (re)stating that increasing migration flows cannot justify violations of the Convention – in particular any deprivation of liberty – there seems to be some grey area in this reasoning, by which States are granted larger margins of manoeuvre when dealing with irregular migrants. Notably, the judgement reiterates the centrality of the right to seek asylum (para. 247) and the need to protect asylum seekers. Nevertheless, the fact that the applicants did not present themselves as international protection seekers has proven to be crucial for the outcome of the Grand Chamber’s decision. It remains to be seen how the ECtHR’s protection framework for irregular migrants will evolve in the future. These are crucial questions, especially in the context of the present migratory movements and, most importantly, when the European Union and its Member States are negotiating ‘migration partnerships’ with third countries. As already predicted by Judge Lemmens in his partly dissenting opinion to the Chamber’s ruling, the significance of the Khlaifia case is likely to extend far beyond the present case.