Information Note on the Court’s case-law 202

December 2016

Khlaifia and Others v. Italy [GC] - 16483/12

Judgment 15.12.2016 [GC]

Article 4 of Protocol No. 4

Prohibition of collective expulsion of aliens

Removal to Tunisia of large group of Tunisian sea-migrants after each had been identified individually and allowed to raise any personal objections: no violation

Article 13

Effective remedy

Lack of suspensive ef fect of remedy for alleged collective expulsion: no violation

Facts – The applicants, who were Tunisian nationals, were part of a group of migrants who had set off by boat from Tunisia in September 2011 heading for Italy. Their makeshift vessels were inter cepted by the Italian Coastguard, which escorted them to a port on the island of Lampedusa, where they were placed in an early reception centre (CSPA). The centre was gutted by fire during a riot and the applicants were then taken to ships moored in Palerm o harbour. They were issued with refusal-of-entry orders. Before being put on planes bound for Tunisia they were received by the Tunisian Consul, who recorded their identities. Once in Tunis they were released. The whole series of events lasted about twelv e days. In 2012 a judge dismissed complaints by a number of associations for abuse of power and arbitrary arrest.

In a judgment of 1 September 2015 (see Information Note 188 ), a Chamber of the Court found a violation of Article 4 of Protocol No. 4 to the Convention on account of the lack of adequate safeguards of a genuine and specific examination of the individual situation of each applicant; a violation of Article 13 of the Convention, on account o f the lack of suspensive effect of the relevant remedies; a violation of Article 5 § 1 (lack of legal basis for the deprivation of liberty), and of Articles 5 § 2 and 5 § 4; a violation of Article 3 for the conditions of detention in the centre and no viol ation of Article 3 for the detention on the ships; and a violation of Article 13 for the lack of remedies in that connection.

On 1 February 2016 the case was referred to the Grand Chamber at the Government’s request.

Law

Article 4 of Protocol No. 4: Article 4 of Protocol No. 4 did not guarantee the right to an individual interview in all circumstances; the requirements of this provision might be satisfied where each alien had a genuine and effective possibility of submitti ng arguments against his or her expulsion, and where those arguments were examined in an appropriate manner by the authorities of the respondent State.

In the present case, the applicants, who could reasonably have expected to be returned to Tunisia, had remained for between nine and twelve days in Italy. Even assuming that they had encountered objective difficulties in the CSPA or on the ships, during that not insignificant period of time they had had the possibility of drawing the attention of the nation al authorities to any circumstance that might affect their status and entitle them to remain in Italy.

Firstly, the applicants had undergone two identity checks:

(a) The first identity check, according to the respondent Government, took place after the applicants’ arrival in the reception centre and involved taking photographs of them and recording their fingerprints. While the Government had failed to produce the applicants’ personal records, they had plausibly attributed that failure to the fire in the centre. As to the alleged lack of communication and mutual understanding between the migrants and the Italian authorities, it was reasonable to assume that the dif ficulties had been alleviated by the undisputed presence in the centre of some one hundred social operators, including social workers, psychologists and about eight interpreters and cultural mediators.

(b) A second identity check took place before the ap plicants boarded the planes for Tunis: they had been received by the Tunisian Consul, who had recorded their identities. Even though the check was carried out by the representative of a third State, this subsequent check enabled verification of the migrant s’ nationality and provided them with a last chance to present arguments against their expulsion, on grounds such as age or nationality (some of the migrants had thus not been returned).

Secondly, while the refusal-of-entry orders had been drafted in compa rable terms, only differing as to the personal data of each migrant, the relatively simple and standardised nature of the orders could be explained by the fact that the applicants did not have any valid travel documents and had not alleged either that they feared ill-treatment in the event of their return or that there were any other legal impediments to their expulsion. It was therefore not unreasonable in itself for those orders to have been justified merely by the applicants’ nationality, by the observat ion that they had unlawfully crossed the Italian border, and by the absence of any of the situations provided for in the relevant law (political asylum, granting of refugee status or the adoption of temporary protection measures on humanitarian grounds).

T hirdly, it was not decisive that a large number of Tunisian migrants had been expelled at the relevant time or that the three applicants had been expelled virtually simultaneously. This could be explained as the outcome of a series of individual refusal-of -entry orders. Those considerations sufficed for the present case to be distinguished from the cases of ÄŒonka v. Belgium (51564/99, 5 February 2002, Information Note 39 ), Hirsi Jamaa and Others v. It aly (27765/09, 23 February 2012, Information Note 149 ), Georgia v. Russia (I) [GC] (13255/07, 3 July 2014, Information Note 176 ) and Sharifi an d Others v. Italy and Greece (16643/09, 21 October 2014, Information Note 178 ).

In addition, the applicants’ representatives had been unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude their removal. That called into question the usefulness of an individual interview in the present case.

To sum up, the applicants had underg one two identity checks, their nationality had been established, and they had been afforded a genuine and effective possibility of submitting arguments against their expulsion.

Conclusion: no violation (sixteen votes to one).

Article 13 of the Convention t aken together with Article 4 of Protocol No. 4: In the present case, the refusal-of-entry orders indicated expressly that the individuals concerned could appeal against them to the Agrigento Justice of the Peace within a period of sixty days.

There was no reason to doubt that, in that context, the Justice of the Peace would also be entitled to examine any complaint about a failure to take account of the personal situation of the migrant concerned and based therefore, in substance, on the collective nature o f the expulsion.

As to the fact that this appeal did not have suspensive effect, an in-depth analysis of the De Souza Ribeiro v. France judgment ([GC], 22689/07, 13 December 2012, Information Note 15 8 ), compared with the judgments in ÄŒonka and Hirsi Jamaa and Others, cited above, led the Court to the following conclusions.

Where an applicant had not alleged that he would face violations of Articles 2 or 3 of the Convention in the destination country, removal from the territory of the respondent State would not expose him to harm of a potentially irreversible nature. In such cases the Convention thus did not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but me rely required that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum. In the pre sent case, the remedy available satisfied those requirements.

Moreover, the fact that the remedy available to the applicant did not have suspensive effect had not been a decisive consideration for the conclusion reached in the De Souza Ribeiro case. That c onclusion had been based on the fact that the applicant’s “arguable” complaint under Article 8 of the Convention had been dismissed extremely hastily (his removal to Brazil had been implemented less than an hour after his appeal to the Administrative Court ).

Conclusion : no violation (sixteen votes to one).

Article 3: The applicants had complained about the conditions in which they had been held.

After reiterating that the factors related to an increase in the arrival of migrants could not release the membe r States from their obligations, the Court took the view that it would be artificial to examine the facts of the case outside the context of the humanitarian emergency.

The year 2011 had been marked by a major migration crisis. The arrival en masse of Nor th African migrants (over 50,000 during the year) on Lampedusa and Linosa had undoubtedly created organisational, logistical and structural difficulties for the Italian authorities.

In addition to that general situation there had been some specific problem s just after the applicants’ arrival which contributed to exacerbating the existing difficulties and creating a climate of heightened tension: a revolt among the migrants at the reception centre; an arson attack which gutted the centre; a demonstration by 1,800 migrants through the streets of Lampedusa; clashes between the local community and a group of aliens threatening to explode gas canisters; and acts of self-harm and vandalism.

Those details showed that the State had been confronted with many problems as a result of the arrival of exceptionally high numbers of migrants and that the authorities had been burdened with a large variety of tasks, as they had to ensure the welfare of both the migrants and the local people and to maintain law and order.

The d ecision to concentrate the initial reception of the migrants on Lampedusa could not be criticised in itself. As a result of its geographical situation, it was not unreasonable to transfer the survivors to the closest reception facility.

(a) Conditions in the reception centre – The Court found, noting the following points, that the conditions in which the applicants had been held in the centre did not reach the threshold of severity required for them to be characterised as inhuman or degrading.

(i) While ce rtain reports by parliamentary committees or NGOs showed that there was overcrowding in the centre, together with a lack of hygiene, privacy and outside contact, their findings were, however, counterbalanced by a report of the Council of Europe’s Parliamentary Assembly covering a period that was closer to that of the applicants’ stay there, so the conditions in question could not be compared to those which had led the Court to find a violation of Articl e 3 in other cases.

(ii) Even though the number of square metres per person in the centre’s rooms had not been established, and even supposing that the centre’s maximum capacity had been exceeded by a percentage of between 15% and 75%, the freedom of movement enjoyed by the applicants in the centre must have alleviated the constraints.

(iii) Although the applicants had been weakened because they had just made a dangerous sea-crossing, they did not have any specific vulnerability (they were not asylum-seekers, did not claim t o have endured traumatic experiences in their country of origin, belonged neither to the category of elderly persons nor to that of minors, and did not claim to be suffering from any particular medical condition).

(iv) They had not lacked food or water or medical care and had not been exposed to abnormal weather-related conditions.

(v) In view of the short duration of their stay (3-4 days), their lack of contact with the outside world had not had any serious individual consequences.

(vi) While the authorit ies had been under an obligation to take steps to find other satisfactory reception facilities with enough space and to transfer a sufficient number of migrants to those facilities, in the present case the Court could not address the question whether that obligation had been fulfilled, because only two days after the arrival of the last two applicants, the Lampedusa CSPA had been gutted by fire during a revolt.

(vii) Generally speaking, situations that the Court had sometimes found to be in breach of Article 3 had been more intense or longer in duration.

Conclusion : no violation (unanimously).

(b) Conditions on board the two ships – The threshold of severity ha d not been reached on the ships either.

First, the applicants had failed to produce any documents or third-party testimony certifying any signs of the alleged ill-treatment or confirming their version of the facts (overcrowding, insults, and lack of hygie ne), so there was no reason to reverse the burden of proof.

Second, it could be seen, by contrast, from a judicial decision (based on a press agency note and there being no reason to doubt that it had been taken with the requisite procedural safeguards) th at an MP had boarded the ships and had observed that the migrants were accommodated in satisfactory conditions.

Conclusion : no violation (unanimously).

The Court also found, unanimously, that there had been a violation of Article 5 § 1 (and consequently of Articles 5 § 2 and 5 § 4) on account of the lack of legal basis for the applicants’ deprivation of liberty. Their de facto detention without any formal decision had deprived them of the constitutional habeas corpus guarantees afforded to individuals held in a removal centre and, even in the context of a migration crisis, this could not be compatible with the aim of Article 5 of the Convention. There had also been a violation of Article 13 taken together with Article 3, in respect of the detention condition s.

Article 41: EUR 2,500 to each of the applicants for non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes