May 23, 2025
By Lorenzo Acconciamessa
On 29 April 2025 the Grand Chamber issued its ruling in the case of Mansouri v. Italy, which concerned the lawfulness and conditions of an alien’s confinement on board a private ship, used to return him to his country of departure on the basis of a refusal-of-entry order. As regards the applicant’s main complaint – that he had been de facto deprived of his liberty – the Court upheld the Government’s non-exhaustion objection.
The decision fits in a series of rulings in which the Grand Chamber responded to the Member States invitation to give effect to the principle of subsidiarity through a strict application of the admissibility criteria (2011 Izimir Declaration), ‘including by requiring applicants to be more diligent in raising their Convention complaint domestically’ (2018 Copenhagen Declaration). Accordingly, stressing that ‘its role is fundamentally subsidiary’, the Court has imposed a higher standard of diligence on applicants in this respect (Fu Quan, s.r.o. v. the Czech Republic [GC], 2023, para. 170; Grosam v. the Czech Republic [GC], 2023, para. 90), and has started relying on the importance of the subject matter of cases to argue that those matters should be first and foremost assessed by the domestic courts (see Communauté Genevoise d’Action Syndicale (CGAS) v. Switzerland [GC], 2023, para. 161; Duarte Agostinho and Others v. Portugal and 32 Others [GC], 2024, para. 228).
Since those rulings are reshaping the non-exhaustion rule (Glas; Acconciamessa), it seems that the time has come to ask ourselves a wider question: how far can subsidiarity go in this field?
The applicant is a Tunisian national who lawfully resided in Italy on the basis of a temporary residence permit valid until 3 April 2016, but had in the meanwhile applied for a long-term permit.
In January 2016 he travelled to Tunisia. On 1 May 2016 he was subjected to an identity check at the Palermo maritime border while on board the Italian cruise-ferry Splendid. The border police noted that the application for a residence permit had been rejected in March 2016 and that the applicant did not have an entry visa, and issued him with a refusal-of-entry order. He was not allowed to leave the ship, and the border police instructed its captain to return him to Tunis. The Splendid arrived in Tunisia after 7 days, having served other ports, in accordance with its sailing schedule.
Before the Court, the applicant mainly alleged that he had been unlawfully deprived of his liberty on board the ship in breach of paragraphs 1, 2, 4 and 5 of Article 5 ECHR.
The Government raised a two-fold non-exhaustion objection.
First, they submitted that the applicant should have lodged an urgent application for interim relief under Article 700 of the Code of Civil Procedure (CCP) which provides that anyone who has cause to fear imminent and irreparable damage to a right during the time necessary to assert it in ordinary proceedings may ask the ordinary court of competent jurisdiction to order such urgent measures as are deemed most appropriate to preserve, on an interim basis, the possibility of enforcing the decision on the merits. In the Government’s view, this remedy was ‘frequently used in immigration matters’.
Secondly, the Government submitted that the applicant could have brought an action in the civil courts under Article 2043 of the Civil Code (CC) – which provides that ‘[a]ny unlawful act which causes damage to another shall oblige the person having committed it to make good such damage’ – to seek compensation from the State or the shipowner. According to the Government, this provision allows to obtain compensation for damage resulting from any act recognised as unlawful, including in respect of acts of State administration.
The Court reaffirmed its case-law according to which, in respect of a deprivation of liberty, ‘preventive and compensatory remedies have to be complementary’ (Selahattin Demirtaş v. Turkey (no. 2) [GC], 2020, para. 207). While the deprivation is ongoing ‘a remedy that does not afford a possibility of release cannot be regarded as an effective remedy’. However, when the deprivation has ended a ‘claim capable of leading to an acknowledgment of the alleged violation and an award of compensation is in principle an effective remedy which needs to be pursued if its effectiveness in practice has been convincingly established’ (Selahattin Demirtaş v. Turkey (no. 2) [GC], 2020, para. 208, emphasis added).
As regards the compensatory remedy, the Court noted that the Government had not provided any examples from domestic case-law (para. 94), but had referred to the execution procedure pertaining to the Khlaifia and Others v. Italy judgment, where they had submitted three rulings which had acknowledged that there had been an unlawful deprivation of liberty, and ordered the Ministry of the Interior to compensate the respective claimants for the non-pecuniary damage sustained (para. 96). The Court admitted that those rulings concerned different factual circumstances (para. 97), and that they had been delivered after the events of the case (para. 98), but considered that they demonstrated ‘with a sufficient degree of certainty that the civil courts […] are capable of holding the State authorities to account for deprivations of liberty found to have been unlawful […] and, where appropriate, may award compensation to make good the damage thereby sustained’ (ibid.). The Court also dismissed the applicant’s argument according to which the lack of authorities in the area of immediate removals of aliens at the border demonstrated that the remedy was not effective (paras. 99-100).
Although it found that the compensatory remedy would have sufficed in order to dismiss the case, the Court examined also whether the preventive remedy satisfied the requirement of effectiveness.
In this respect, it noted that the Government had provided case-law examples in which civil courts had ordered under Article 700 CCP to register international-protection applications promptly, pending the outcome of the proceedings on the matter of international protection (para. 104). Although the Government acknowledged that there was no example to date of a case where a court hearing a case under that provision had ordered the claimant’s release (para. 105), the Court reiterated that the lack of domestic authorities was not decisive (para. 106). It also dismissed the arguments according to which the procedure would not have guaranteed a speedy decision (para. 107), and was not accessible since the applicant was confined on a boat (para. 108).
Accordingly, the Grand Chamber found that the applicant ‘did not take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the Court being subsidiary’ (para. 110), and that this prevented the Court from benefitting of the national courts’ factual and legal findings together with their assessment (para. 112).
Moreover, it considered that this conclusion was further supported by the fact that events ‘unfolded in the context of border control exercised by Italy, a country which is in a front-line position in handling the flow of migrants from certain regions of Africa and the Middle East’, and that ‘in this area, it is especially important to give the national courts an opportunity to interpret domestic law and prevent or put right Convention violations through their own legal system’ (para. 113). Lastly, it noted that the institution of proceedings before the domestic courts would have allowed, if needed, to seek a preliminary ruling from the CJEU on issues concerning the relevant EU law (para. 115).
It seems that the Court’s ruling departed from several principles concerning the functioning of the non-exhaustion rule.
First, one should recall the principles concerning the distribution of the burden of proof regarding the effectiveness in practice of a remedy.
The Grand Chamber reiterated that ‘it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time’ and that it is only once this has been satisfied that the burden is shifted on the applicant (Vučković and Others v. Serbia (preliminary objection) [GC], 2014, para. 77).
However, it omitted to quote the principle pursuant to which ‘the availability of a remedy said to exist […] must be clearly set out and confirmed or complemented by practice or case‑law, which must in principle be well established and date back to the period before the application was lodged’ (Guravska v. Latvia (dec.), 2020, para. 24). By contrast, in para. 99 of Mansouri the Grand Chamber referred to Gerghina v. Romania ([GC], 2015, para. 88), which had specified that this principle is ‘subject to exceptions which may be justified by the particular circumstances of the case’.
However, in the past, those exceptions were identified in peculiar cases, for example in respect of newly introduced remedies which had not been in place long enough to be tested, especially if introduced following a Court’s pilot judgment (Bistieva and Others v. Poland, 2018, para. 62, 10 April 2018; Stella and Others v. Italy (dec.), 2014, para. 65), or in case of smaller jurisdictions, where the number of cases of a specific kind may be fewer (Aden Ahmed v. Malta, 2013, para. 63; M.N. and Others v. San Marino, 2025, para. 81). In Gerghina the Court admitted that, although the remedy was neither new nor special, the absence of domestic case-law could be justified since the case concerned ‘a relatively recent branch of domestic law’ (para.100).
In Mansouri the Grand Chamber took this exception and made it general: in its view, ‘the absence of a well-established body of domestic case-law predating the application […] can be explained by the fact that the remedy […] has never been used in this particular context’ (para. 99, emphasis added).
In the past, the Court had dismissed similar arguments. In Ádám and Others v. Romania (2020, para. 50) it considered that it was ‘inconceivable’ that a remedy provided by a general instrument had never been used in a situation similar to that of the applicant, and concluded that, in failing to submit relevant case-law, the Government had failed to prove that it constituted in practice an effective remedy. Similarly, in Guðmundur Gunnarsson and Magnús Davíð Norðdahl v. Iceland (2024, para. 49) the Court considered that the Government had not provided a reasonable explanation for the absence of domestic case-law: it observed that although ‘[t]he current Constitution has been in force since 1944 and despite regular elections and recurrent election disputes, no such case has ever been brought before the Icelandic Supreme Court’. In this context, the Court considered that ‘at the present moment the existence of the alleged remedy remains theoretical and abstract’ and that, accordingly, it was ‘unreasonable to expect that the applicants must have attempted to exhaust’ it (para. 48).
The situation in Mansouri was the same: Articles 2043 CC and 700 CCP have been in force since 1942 and had never been used in a situation similar to that of applicant.
Relying on the above case-law, the Court did not, in the past, consider that the mere existence of a general remedy meant that it was effective in concreto. In Pruteanu v. Romania (2015, para. 55), it held that, notwithstanding the Convention being directly applicable in the domestic legal system, a claim for damages against the State before the ordinary courts could not be considered effective, due to the absence of domestic case-law. In Vinčić and Others v. Serbia ([GC], 2009, para. 51) a new specific constitutional law provision allowing direct access to a constitutional court for human rights complaints was not considered effective until after the latter court had heard applications and published judgments on their merits.
According to the Grand Chamber in Mansouri, by contrast, his situation does not exempt from the duty to try to exhaust the remedy, since, on the one hand, ‘[b]y applying to the appropriate court on the basis of Article 2043 [CC], the applicant would have created an opportunity for the development of domestic case-law on this subject, and this would potentially have been beneficial to anyone else in a similar or comparable situation’ (para. 99), and, on the other hand, if he had any doubts as to the possibility of obtaining his release on the basis of Article 700 CCP, it was for him to dispel those doubts by applying to the courts (para. 106).
In so doing, the Grand Chamber implicitly stressed the importance ‘of allowing remedies to develop in a constitutional system’ (McFarlane v. Ireland [GC], 2010, para. 120).
It might be well possible that the Grand Chamber decided to overcome the approach described above since it has now clearly held that ‘the principle of subsidiarity imposes a shared responsibility between the States Parties and the Court, and [entails] that national authorities and courts must interpret and apply the domestic law in a manner that gives full effect to the Convention’ (Guðmundur Andri Ástráðsson v. Iceland [GC], 2020, § 250). Even more clearly, it stipulated that subsidiarity puts the national courts ‘under an obligation to interpret and apply domestic law in a manner that gives full effect to the Convention’ and that, as corollary, ‘where an applicant’s pleas relate to the ‘rights and freedoms’ guaranteed by the Convention, the courts are required to examine them with particular rigour and care’ (Nalbant and Others v. Turkey, 2022, para. 46, emphasis added).
These new obligations would entail that, in order to allow for the domestic authorities to develop a more Convention-compliant case-law, applicants are required to make use of the general remedies provided in their legal systems. This was clearly stated in another recent case, where the Court stressed that what mattered was not the (non-)existence of domestic case law, but the fact that ‘the domestic legal system sets out a specific body with a general competence in the field of data protection’ (Casarini v. Italy, 2024, para. 102).
From a systemic point of view, this might be a desirable trajectory. The establishment of the actions provided for by Article 700 CCP and 2043 CC as general remedies for all Convention-complaints would fill several loopholes in the domestic system caused by the absence of remedies to complain of various issues, such as unlawful searches in criminal (Palmeri v. Italy (dec.), 2024, para. 53) and tax proceedings (Italgomme Pneumatici S.r.l. and Others v. Italy, 2025, para. 133).
However, could this specific applicant, at the material time (in 2016), be reproached for having failed to exhaust the said remedies?
First, all the cited developments in the Court’s case-law are subsequent to the facts. So how could the applicant have known that Article 700 CCP was a remedy to be exhausted, notwithstanding the absence of domestic case-law, if at that time the Court’s case-law required this evidence in order to prove its effectiveness?
Second, at the material time, the available Court’s case-law (not even cited in Mansouri) indicated that Article 2043 CC was not an effective remedy. The Court had held that, in the absence of domestic authorities, the claim for damages against the State in an action before the ordinary courts could not be considered effective in detention cases (Picaro v. Italy, 2005, para. 84; Zeciri v. Italy, 2005, para. 50). This finding was subsequently confirmed while the case of Mansouri was pending before the Court (Sy v. Italy, 2022, para. 147).
Third, there had not been, at the material time, domestic developments capable of overcoming the Court’s previous findings (McFarlane v. Ireland [GC], 2010, para. 120). It was only on 6 March 2025 (one day after the Grand Chamber deliberated on the case of Mansouri), that the Combined Divisions of the Italian Court of Cassation issued a ruling that admitted the possibility of resorting to Article 2043 CC to obtain compensation of the damages caused by an unlawful deprivation of liberty.
In the light of the above, the applicant was actually diligent in not lodging a similar action: otherwise, he would have run the risk of the Court finding that, since he had exhausted a remedy that the Court had declared non-effective, his application had been lodged too late (Mocanu and Others v. Romania [GC], 2014, para. 259).
By contrast, the Grand Chamber required him to exhaust in 2016 a remedy that, according to the available case-law of the Court and in the absence of domestic case-law developments, was not effective.
This can be hardly reconciled with the importance the Court attaches to the ‘stability and foreseeability of its case-law in terms of legal certainty’ (Halet v. Luxembourg, 2023, para. 120). Obviously, the Court, especially the Grand Chamber, can overrule previous findings. However, the same Court has held under Article 6 that conditions of admissibility of judicial actions cannot be retrospectively applied (Gil Sanjuan v. Spain, 2020, paras. 38-39), and found breaches of this provision where an action had been dismissed on the basis of the need (which was not foreseeable) to previously exhaust another remedy (Olivares Zúñiga v. Spain, 2022, para. 35).
To conclude, it seems that the Court is clearly tightening the application of the non-exhaustion rule, and establishing a presumption of effectiveness of general remedies in which applicants might try to invoke Convention-related complaints. Therefore, the new rule seems to be that, even absent domestic case-law demonstrating the practical effectiveness of a remedy, ‘where legal systems provide constitutional protection of fundamental human rights and freedoms, it is in principle incumbent on the aggrieved individual to test the extent of that protection and allow the domestic courts to develop those rights by way of interpretation’ (Mansouri, para. 99, with further references).
While, as shown above, these developments can be in theory justified from a systemic point of view on the basis of the developments in the Court’s case-law concerning the higher standard of diligence imposed also on the domestic courts which follows from the new understanding of subsidiarity and shared responsibility, it is hardly understandable how they could be retrospectively applied to an applicant that could not, at the material time, have foreseen them.
From a more strictly Italian perspective, it is not entirely clear how the Grand Chamber could consider, in the absence of domestic case-law developments, that Article 2043 CC has become an effective remedy, since there were no elements capable of overcoming the shortcomings that had been identified in Sy v. Italy (2022, para. 147) concerning the difficulties faced by an applicant to prove the existence of an unlawful act, the fraud or negligence on the part of the relevant State authority, and the damage suffered. Also, the Grand Chamber seems to have overlooked that Article 700 CCP is a provision which can be applied only in conjunction with a civil action which can be lodged before the civil courts, in order to anticipate its effects, and did not clarify which domestic provision could have been invoked in order to obtain the applicant’s release.
In any case, given the importance that the Court attaches to the need of stability of its case-law, and to avoid overruling itself in the absence of cogent reasons, a more detailed explanation would have been needed, also in order to make it clear if, in the future, applicants are required to exhaust the said remedies in respect of a wider range of Convention violations.
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