PARTLY DISSENTING OPINION OF JUDGE DEDOV

I agreed with the conclusion of the Court in finding certain violations of Article 5 of the Convention as a result of the absence of a legal basis and the “quality of law” principle, even if the initial detention of the irregular migrants was reasonable under the standards of the Convention, to prevent their unauthorised entry into the country (Article 5 § 1 (f)), and the authorities complied with all necessary procedural safeguards (concerning arbitrariness, assessment of lawfulness of entry, assessment of individual circumstances and time-frame). The applicants did not submit any arguments to prove that any principles or safeguards, including that of legal certainty, had been breached by the authorities, or that the applicants had not understood their legal status from the moment of their arrival.

Therefore, I cannot accept that “the applicants’ deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness” (see paragraph 107 of the judgment). The same approach could be applied to the bilateral agreements between Italy and Tunisia, regardless of whether or not those agreements were accessible to the applicants (see paragraphs 102 and 103 of the judgment), as the applicants had put themselves in an unlawful situation, contrary to the presumption of the sovereign right of any State to control its borders.

Furthermore, in a critical situation of mass migration of aliens, when thousands of irregular migrants simultaneously arrive on the Italian coast, the obligation to limit the period of detention to “the time strictly necessary to establish the migrant’s identity and the lawfulness of his or her presence in Italy” (see paragraph 104 of the judgment), without taking into account the time needed to organise the expulsion measures or to validate the restriction of liberty for each migrant within forty-eight hours (see paragraph 105 of the judgment), would place an excessive burden on the authorities.

Moreover, the authorities provided the applicants with all necessary assistance to save their lives. In spite of that, the applicants refused to cooperate with the authorities and created inconvenience for other lawful residents, participating in a riot which caused mass disorder.

However, since the respondent Government have not even recognised the fact of detention, the necessity to improve the quality of the law could be considered an adequate message to the authorities from the Court. The authorities now have the opportunity to establish the same procedural safeguards for the purposes of any legitimate actions covered by Article 5 § 1 (f) of the Convention, with a view to deportation or extradition or, as in the present case, to prevent unauthorised entry into the country.

For these reasons, I voted against the award to the applicants in respect of non-pecuniary damage.

PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. My only disagreement with the majority is that, to my regret, I am unable to join them in finding that there has been no violation of Article 4 of Protocol No. 4, or of Article 13 of the Convention taken together with the former. I agree with the majority that the word “expulsion” in Article 4 of Protocol No. 4 “should be interpreted in the generic meaning, in current use (to drive away from a place)” (see paragraphs 243-44 of the judgment), and I thus also agree with them when they reject the Government’s argument that Article 4 of Protocol No. 4 does not apply to the present case because the procedure to which the applicants were subjected was classified as a “refusal of entry with removal” (under the bilateral agreements between Italy and Tunisia) and not as an “expulsion”.

2. It is to be noted, at the outset, that Protocol No. 4 came into force in respect of Italy on 27 May 1982.

3. I adhere to the following reasoning in the Chamber judgment (paragraphs 156-57) to the effect that there had been a violation of Article 4 of Protocol No. 4:

“156. The Court is, however, of the opinion that the mere introduction of an identification procedure is not sufficient in itself to rule out the existence of a collective expulsion. It further observes that a number of factors lead to the conclusion that in the present case the impugned expulsion was indeed collective in nature. In particular, the refusal-of-entry orders did not contain any reference to the personal situations of the applicants; the Government failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; a large number of individuals of the same origin, around the time of the facts at issue, were subjected to the same outcome as the applicants; and the bilateral agreements with Tunisia (see paragraphs 28-30 above), which have not been made public, provided for the return of unlawful migrants through simplified procedures, on the basis of the mere identification of the person concerned by the Tunisian consular authorities.

157. Those factors suffice for the Court to rule out the existence of sufficient guarantees demonstrating that the personal circumstances of each of the migrants concerned had been genuinely and individually taken into account (see, mutatis mutandis , Čonka , cited above, §§ 61-63).”

A. Whether the simplified procedure for readmission, provided for in agreements between Italy and Tunisia, was followed in the present case

4. It is clear from the judgment (paragraph 250) that the second identification that the applicants underwent was carried out before they boarded the planes for Tunis by the Tunisian Consul and not by a representative of the Italian authorities. That was precisely in accordance with the simplified procedure, on the basis of the mere identification of the person concerned by the Tunisian consular authorities, as provided for in bilateral agreements with Tunisia and as mentioned in the above quoted passage from the Chamber judgment (§ 156).

5. In the procès-verbal of a meeting between the Minister of the Interior of the Tunisian Republic and the Minister of the Interior of the Italian Republic, at Tunis on 4 and 5 April 2011 (Annex 2 ter to the referral request, § 2), it was agreed, inter alia, that “[t]he nationality of those Tunisian nationals who arrive in Italy after the signing of this procès-verbal will be verified by a simplified method at their place of arrival in Italy”. The 2011 agreement refers to and complements an earlier bilateral agreement, provided for in an Exchange of Notes of 6 August 1998 ( note verbale , Annex 2 to the referral request). This more comprehensive text, under the heading “Readmission of nationals of the two countries” (Part II, § 1), states that it was agreed between the two countries as follows:

“Each Party shall, at the request of the other Party and without further formalities, readmit into its territory any person who does not meet the conditions of entry or residence applicable in the requesting State, in so far as it has been or can be established by the identification procedure that the person concerned is a national of the requested State.”

Under paragraph 5 of the same Part of the note verbale there was no mandatory obligation to conduct a personal interview, since this was apparently an exceptional measure at the discretion of the consular authority of the requested State (i.e. Tunisia, in the present case), with the aim of establishing the migrant’s nationality:

“If the consular authority of the requested State nevertheless considers it necessary notwithstanding all the means of identification provided for above, to hear the person concerned, in so far as is possible ... Where it is possible to establish the person’s nationality on the basis of that interview, the laissez-passer shall be issued forthwith.”

Neither does the 2011 agreement refer to any mandatory interview, merely that the “readmission must in all circumstances take place in the presence of the Tunisian consular authority”.

6. As is rightly mentioned in the applicants’ observations of 22 April 2016 (§ 64), they “were returned to Tunisia from Italy simply on the basis of their identification as Tunisian nationals and without proper examination of their personal situation”. This is also apparent from the admission of the Government in their request for referral to the Grand Chamber (§ 10), which reads as follows (all placed in emphasis in the original text):

“10. Regard being had to the above agreements, the Government submit that the judgment is incoherent per se, in particular in terms of the interpretation and application of Article 4 of Protocol No. 4 prohibiting the ‘collective expulsion of aliens’, which was not violated in this case because the applicants – who were neither under arrest nor in custody – were returned under the simplified procedure provided for in the agreements mentioned above, as Judges Sajó and Vučinić rightly point out in their ‘partly dissenting opinion’ annexed to the Chamber judgment.”

7. From the said bilateral agreements and the annexes to the note verbale , the texts of which are also attached to the Government’s referral request, it is obvious that the purpose of the agreements was to reinforce cooperation between the two countries, by readmitting into their respective territories any person who did not meet the conditions of entry or residence, on the basis of nationality alone, without further formalities or a substantial personal interview and excluding the assistance of a lawyer. To the extent that any bilateral agreement does not require mandatory personal interviews for the collective expulsion of aliens, I believe that it violates the provisions of Article 4 of Protocol No. 4. Such a violation, with due respect, occurred in the present case, since these bilateral agreements were adhered to, instead of the provisions of Article 4 of Protocol No. 4, with the result that the competent authorities did not conduct any personal interviews. Since the bilateral agreement of 5 April 2011 had not been made public (see paragraph 37 of the judgment) and the applicants did not know why personal interviews were not conducted, the violation becomes even more striking. According to the case-law of this Court, States are considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Åžirketi v. Ireland [GC], no. 45036/98, § 154, ECHR 2005 ‑ VI).

8. There has never been any reservation or declaration by Italy regarding Article 4 of Protocol No. 4. The only reservation made by Italy to Protocol No. 4 concerned Article 3, which was not applicable in the present case, and, in any event, concerned only the royal family and had been withdrawn on 12 November 2012. The fact that Italy has made no reservation or declaration regarding collective expulsions of Tunisian nationals, on the basis of its bilateral agreements with Tunisia, did not enable Italy to proceed in the present case on the basis of these agreements rather than that of Article 4 of Protocol No. 4.

9. As Professor James Crawford (Judge of the International Court of Justice) rightly observes, “collective expulsion of aliens is a serious breach of international law” (see James Crawford, “Chance, Order, Change: The Course of International Law”, Collected Courses of the Hague Academy of International Law , vol. 365, Leiden/Boston, 2013, p. 208, § 350). More specifically, he comments as follows:

“In principle, a State has the right to determine who shall enter its territory, subject to a few legal restrictions. Among these, collective expulsion of aliens is a serious breach of international law, and Article 4 is expressed as an absolute and non ‑ derogable prohibition. As such, it must be interpreted narrowly and precisely.”

B. Whether the procedural obligation to conduct personal interviews under Article 4 of Protocol No. 4 is mandatory and whether the corresponding procedural right is absolute

10. The majority point out that “Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances”, and that “the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State” (paragraph 248 of the judgment). They also observe that “the applicants’ representatives both in their written observations and the public hearing ..., were 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”. They continue by remarking that “[t]his calls into question the usefulness of an individual interview in the present case” (paragraph 253 of the judgment).

11. I believe, however, that for the purposes of Article 4 of Protocol No. 4 the procedural obligation of the competent national authorities to conduct a personal interview is indispensable. This obligation would serve to fulfil the aim of the provision. It is clearly a safeguard to be applied without exception, and thus does not undermine the prohibition formulated in absolute terms. The prohibition of collective expulsion in that Article is, ultimately: (a) a prohibition of arbitrariness, and (b) a prohibition of discrimination. Because of their nature, collective expulsions of aliens are presumed to be carried out arbitrarily and in a discriminatory manner, unless, of course, it is guaranteed to each alien that the procedural obligation will be fulfilled by the State concerned.

12. With all due respect, I am unable to follow the interpretation of Article 4 of Protocol No. 4 adopted by the majority, for the following reasons:

(a) This interpretation departs from the Court’s previously established case-law, according to which the aim of Article 4 of Protocol No. 4 is invariably to prevent States from being able to proceed with collective expulsions of aliens without examining, through the procedure of a personal interview, the individual circumstances of each one. In other words, this interpretation disregards the mandatory nature of the procedural obligation of the authorities to conduct personal interviews in all cases engaging Article 4 of Protocol No. 4. This may lead to: (i) giving the authorities the choice of deciding to abstain from upholding the rule of law, i.e., from the fulfilment of their said procedural obligation, at the expense of satisfying the principles of effectiveness and legal certainty; (ii) making the Convention safeguards dependent merely on the discretion of the police or the immigration authorities, against whom the allegation of a violation is directed, and thereby not only making the supervisory role of the Court difficult, but even undermining it and rendering it unnecessary; (iii) disregarding the need for aliens in a collateral expulsion case to be protected against any risk of arbitrariness or abuse of power; and (iv) discouraging, even aliens who are facing violations of Articles 2 and 3 of the Convention, from approaching the borders of European countries, when they know that their procedural safeguards remain at the discretion of the authorities.

(b) It removes the burden of proof, which is on the State, to show that a personal interview has been conducted under Article 4 of Protocol No. 4, by reversing it and shifting it to the individual alien, who is supposed to prove that he or she would have a genuine and effective possibility of obtaining international or other legal protection, even though this is not required by Article 4 of Protocol No. 4.

(c) It subjects the absolute procedural right enjoyed by an alien under Article 4 of Protocol No. 4, securing him or her protection from collective expulsion, to the condition that he or she must have a genuine and effective possibility of obtaining international or other legal protection. To put it differently, it places an implied exception or limitation on the said provision, rendering the guarantee inapplicable to any alien who does not present, to the satisfaction of the immigration authorities, an arguable legal claim to international or other legal protection.

(d) It significantly limits the ambit of the prohibition formulated in absolute terms and the application of Article 4 of Protocol No. 4, both ratione personae and ratione materiae, thus contravening its purpose, object and effectiveness, and undermining the requisite level of protection. As will be shown below, the purpose of this provision is to prohibit, in absolute terms, the simultaneous indiscriminate expulsions of aliens who are members of the same group, merely on the basis of their membership in the group, or their religion or nationality, without the individual circumstances of each alien being taking into account by the competent authorities through the procedure of personal interviews. A personal interview is important because this is the best means of fulfilling the aim of Article 4 of Protocol No. 4 to avoid human herding, by way of indiscriminate collective expulsion, thus diminishing human dignity.

(e) It subjects or subjugates the procedural obligation, which is at the heart of the ban on collective expulsion under Article 4 of Protocol No. 4, to the existence of a substantive obligation, which does not exist under the Article, with the effect that the former is negated. In other words, it does not take into account the fact that the procedural guarantee vanishes whenever a personal interview is not conducted, and the Court accepts the submission of the respondent State that the applicants did not have a substantive right to put forward arguments against the measure or that they did not submit any claim despite allegedly having the opportunity to do so. It overlooks the point that the absence of an explicit request for asylum or international protection should not release the State from its procedural obligation.

(f) By limiting the application of Article 4 of Protocol No. 4 only to persons who have a genuine and effective possibility of obtaining international or other legal protection, the majority disregard the fact that this provision, unlike Article 2 § 1 of the same Protocol, which is confined only to persons lawfully resident within the territory of a State, applies whether the aliens entered the territory of a State lawfully or unlawfully, and if lawfully, whether or not they remain lawful entrants. As will be explained below, Article 4 of Protocol No. 4 applies mainly to aliens who have unlawfully entered the territory of a State.

(g) Lastly, the said interpretation absolutely deprives Article 4 of Protocol No. 4 of its procedural guarantee, by taking away from the procedural right its shield of protection.

13. The majority adopt the Government’s view that the applicants really underwent a personal interview, even though the Chamber (see Chamber judgment, § 156) found that there was absolutely no evidence to support the Government’s general contention that each situation had been assessed individually, and moreover, despite the fact that the Government did not challenge this finding by the Chamber in their referral request. The applicants rightly pointed out in their observations (cited above, § 80), that this failure by the Government to challenge the finding should have been seen by the Court as the Government’s acceptance of the facts as presented in the Chamber judgment.

14. Irrespective of what is said in the previous paragraph – to be explained in more detail below – the Government adduced no evidence that personal interviews had been conducted, but only raised general, vague, unproven and unconvincing allegations.

15. It should be observed that the procedural guarantee of Article 4 of Protocol No. 4 applies only to cases of collective expulsion of aliens, and not to the case of an expulsion of an alien who entered the territory of a State not as a member or part of a group but alone (individual expulsion). On the contrary, Article 3 § 2 of Protocol No. 4 provides for the non ‑ deprivation of the right of a person to enter and move within the territory of the State of which he or she is a national. So, in my view, the aim of Article 4 of Protocol No. 4 was to prohibit collective expulsion of aliens as such and not to guarantee, as the majority decide, that every alien who enters a State should at least be able to rely on international or other legal protection, or on the non-refoulement principle.

16. In the applicants’ observations to the Court (cited above, § 127), they say – while at the same time hoping that it will not happen – that it “would be a serious and unjustified backward step in human rights protection in the field of expulsion”, for this Court, not “to confirm the principle that foreign nationals, whatever their legal status, can only be expelled or deported after the person concerned has been granted an individual interview with the authorities”. I believe this statement is correct, especially considering the evolutive or dynamic approach of the Court in relation to the interpretation of other provisions of the Convention. The Court has on many occasions held that the Convention is a “living instrument” and has given a broad interpretation, expanding the fundamental rights and freedoms. In the present case, however, the majority attach a restrictive interpretation to the essence of an absolute procedural right, contrary to the Court’s approach to another absolute right, namely the right to be free from torture or inhuman or degrading treatment or punishment under Article 3 (see, inter alia , Tyrer v. the United Kingdom , 25 April 1978, § 81, Series A no. 26, and Bouyid v. Belgium [GC], no. 23380/09, § 90, ECHR 2015). Such an interpretation of Article 4 of Protocol No. 4 is, in my view, contrary to the wording and object of the relevant provision and departs from the previous case-law of the Court.

17. The idea that the Convention is a living instrument, together with the principle of effectiveness ( “effet pratique”, “ut res magis valeat quam pereat” ), forming the “bedrock” of evolutive interpretation (as characterised by R.C.A. White and C. Ovey (eds) in Jacobs, White and Ovey, The European Convention on Human Rights (fifth edition, Oxford, 2010, pp. 73 et seq. ), are particularly referred to by the Court in Hirsi Jamaa and Others v. Italy ([GC], no. 27765/09, § 175, ECHR 2012), when dealing with Article 4 of Protocol No. 4 as follows:

“... account must be taken of the purpose and meaning of the provision in issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for example, Soering , cited above, § 102; Dudgeon v. the United Kingdom , 22 October 1981, Series A no. 45; X, Y and Z v. the United Kingdom , 22 April 1997, Reports 1997-II; V. v. the United Kingdom [GC], no. 24888/94, § 72, ECHR 1999-IX; and Matthews v. the United Kingdom [GC], no. 24833/94, § 39, ECHR 1999-I). Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Airey v. Ireland , 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turke y [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005-XI).”

Though the above passage, invoked by the applicants in their observations (cited above, § 81), concerns a different issue of interpretation of Article 4 of Protocol No. 4, a similar effective interpretation should be applied when it comes to the issue in question.

18. The effectiveness of the provision of Article 4 of Protocol No. 4, like any other provision of the Convention, is ensured by taking into account its object and purpose in good faith. As the International Law Commission Report 1966 ( Yearbook of the International Law Commission [YBILC], 1966, vol. II, p. 239, § 6) pertinently expounded:

“... When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation be adopted.”

In my view, good faith and the objects and purposes of Article 4 of Protocol No. 4 require the need to conduct personal interviews invariably in all collective expulsion cases. Without doubt, States have an obligation to act in good faith in using their power to expel a group of aliens.

19. One should also note in this respect what was said very profoundly by Professor Rudolf Bernhardt, a former President of the Court, in his article entitled “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” ( German Yearbook of International Law, vol. 42 (1999), 11 at p. 14):

“These articles [31 and 32] of the Vienna Convention [on the Law of Treaties] are remarkable in several respects. Firstly, one principle of treaty interpretation, which was often invoked in older text books, is not even mentioned. Namely, the principle that treaties should be interpreted restrictively and in favor of State sovereignty, in dubio mitius . This principle is no longer relevant, it is neither mentioned in the Vienna Convention nor has it ever been invoked in the recent jurisprudence of international courts and tribunals . Treaty obligations are in case of doubt and in principle not to be interpreted in favor of State sovereignty. It is obvious that this conclusion can have considerable consequences for human rights conventions. Every effective protection of individual freedoms restricts State sovereignty, and it is by no means State sovereignty which in case of doubt has priority. Quite to the contrary, the object and purpose of human rights treaties may often lead to a broader interpretation of individual rights on the one hand and restrictions on State activities on the other.”

Moreover, at page 16 he also made the following comment about the role of the object and purpose of a treaty:

“The object and purpose of a treaty plays, as shown in previous quotations, a central role in treaty interpretation. This reference to object and purpose can be understood as entry into a certain dynamism. ”

20. In Hirsi Jamaa and Others (cited above, § 177) it was clearly held as follows:

“The Court has already found that, according to the established case ‑ law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain [ sic ] aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority.”

It appears from the above statement (especially from the absolute terms “without examining” and “without enabling”), which encapsulates the principle of the existing case-law to date, that the procedural obligation under Article 4 of Protocol No. 4 is mandatory, giving no discretion to the States not to exercise it (note the words “to prevent States being able to remove”, emphasis added). The right of all aliens in a collective expulsion scenario is an autonomous procedural right. The said provision and the relevant case-law do not go to the merits of the case or to the results of compliance with the procedural obligation. Besides, according to the above passage, an alien can put forward his or her arguments against the measure taken by the relevant authority and this does not apply only when there is an effective possibility of submitting arguments against expulsion, for example in an asylum procedure. Without a personal interview, as was the case here, there is automatically a violation of Article 4 of Protocol No. 4. It is immaterial what the applicants’ lawyers said in the oral hearing, namely that “the applicants’ individual circumstances did not enable them to rely on international protection or the non-refoulement principle” (see paragraph 222 of the judgment). That cannot, in my view, undermine the applicants’ case, because what was important for them was to have an interview and have the right to put forward their arguments against the measure taken, whether these arguments were valid or not, and whether or not they had any arguments at all, considering that they did not have, at the time, the assistance of a lawyer to explain their legal rights to them. Their lawyers in the oral hearing said that they were not in a position to say on which legal grounds their clients could have relied to justify their stay in Italy. And that was, of course, a genuine statement, since the applicants have not applied ex post facto for leave to remain in Italy or called for a remedy to that end. They have only challenged before the Court the failure by the Italian authorities to comply with their procedural obligation under Article 4 of Protocol No. 4.

21. In the judgment (see paragraph 237) under the section “principles established in the Court’s case-law”, it is rightly stated that:

“According to the Court’s case-law, collective expulsion is to be understood as ‘any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of reasonable and objective examination of the particular case of each individual alien of the group’ ...”

An examination cannot, of course, be reasonable and objective, as stated in this passage, without a personal interview conducted by the authorities.

22. The prohibition of collective expulsion in Article 4 of Protocol No. 4 concerns only the procedure and not the substantive grounds for expulsion. Unlike Article 1 § 2 of Protocol No. 7, which makes provision for grounds unconditionally permitting an individual expulsion of aliens lawfully resident in the territory of a State (i.e. expulsion “necessary in the interest of public order” or “grounded on reasons of national security”), Article 4 of Protocol No. 4 does not contain a similar provision, but only a prohibition of collective expulsion.

23. Even supposing that Article 4 of Protocol No. 4 were to guarantee, apart from a procedural right, also a substantive right, imposing correspondingly on the national authorities both a procedural and a substantive obligation, a failure to fulfil the procedural obligation would suffice to violate Article 4 of Protocol No. 4. This is the case regarding other provisions of the Convention, such as Articles 2, 3 and 8, on which the jurisprudence is clear, namely that these provisions guarantee both substantive and procedural rights and that the corresponding obligations of the State are separate, independent and autonomous. For instance, in Celniku v. Greece (no. 21449/04, §§ 54, 59 and 70, 5 July 2007) the Court found a violation of Article 2 of the Convention only under its procedural head, and not also under its substantive head.

24. The applicants rightly argued in their observations (cited above, § 126) that their interpretation of Article 4 of Protocol No. 4 was in line with customary international law and the case-law of the Court of Justice of the European Union, to the effect that aliens have the right to express their views on the legality of their stay. This argument may receive support from the principle of “external coherence”, according to which “a treaty cannot be interpreted in vacuum, but must be considered as part of a wider legal system” (see Daniel Rietiker, “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis ”, Nordic Journal of International Law, vol. 79, no. 2 (2010), p. 271). It is to be noted that pursuant to Article 31 § 3(c) of the VCLT, “[t]here shall be taken into account, together with the context: ... (c) Any relevant rules of international law applicable in the relations between the parties”.

25. All the third parties which intervened in the proceedings before the Grand Chamber used cogent arguments in line with the applicants’ interpretation of Article 4 of Protocol No. 4. The Coordination Française pour le droit d’asile “took the view that the Chamber judgment fell squarely within the logic of the Court’s case law ... and was in phase with the relevant international practice ...” (see paragraph 230 of the judgment). They further argued that: “The absence of an explicit request for asylum did not release the State from that obligation. The expulsion of migrants without thoroughly examining their individual situation would significantly increase the risk of a breach of the non-refoulement principle” (see paragraph 230 of the judgment). The McGill Centre pertinently observed that “[i]t could be seen from the Court’s case-law that there was a presumption of ‘collective’ expulsion where there was an expulsion of aliens as a group. The State would then have a duty to show that it had guaranteed a fair and individual procedure to each expelled individual through a reasonable and objective examination of his or her specific situation” (paragraph 233 of the judgment). Lastly, the AIRE Centre and ECRE rightly argued as follows (paragraph 235 of the judgment):

“... the fact that the State might generally be considered ‘a safe country’ was not conclusive of the assumption that it was safe for the return of everyone. An individual assessment had to be made before the return, and the fact that the applicants had not alleged that their return to Tunisia had exposed them to a risk of a violation of Articles 2 and 3 of the Convention was immaterial. ... Moreover, the right of a migrant to be heard and to make known his or her views effectively before the adoption of an expulsion decision had been upheld by the CJEU in the Khaled Boudjlida and Sophie Mukarubega judgments ...”

26. One may conclude from the above that, for the obligation of a State to be fulfilled effectively under Article 4 of Protocol No. 4, it must first be given effect through the procedure of a personal interview.

C. Whether the procedural obligation for conducting personal interviews under Article 4 of Protocol No. 4 was in fact complied with in the present case

27. As to the facts, the majority accept the Government’s submission that there had been personal interviews with the applicants, carried out in the presence of an interpreter or cultural mediator, the records of which, however, had been destroyed by fire during a revolt, and reject the applicants’ claim that there had been no personal interviews at all. With due respect, the majority made this finding without considering that the burden of proof as to the existence of a personal interview was on the Government, which had produced no evidence to the Court, or that the Chamber had made a finding on this point, in favour of the applicants, which had not been challenged by the Government in their referral request.

28. The majority consider plausible the explanation given by the Government that the applicants’ information sheets had been destroyed in the fire, as well as considering it reasonable to assume that, since a number of specialists worked at the Early Reception and Aid Centre (CSPA), these persons must have intervened to facilitate communication and mutual understanding between the migrants and the Italian authorities.

29. Even assuming that the Government’s submission that the documents in question were destroyed in the fire on 20 September 2011 was true, since the applicants were in Italy for at least a further week the Italian authorities should have conducted another interview and should have made a fresh record – an obligation which they signally failed to fulfil. On the contrary, the second identification prior to the applicants’ departure from Italy was carried out by a representative of a third State, and not by the Italian authorities (see paragraph 250 of the judgment). The Government did not give any explanation at all as to why their authorities had not proceeded with a second interview, since the records of the first interview had been destroyed by fire. Even assuming that the authorities had been facing some administrative difficulties at the material time on account of the revolt, they should have abstained from proceeding with the expulsions until they were able to repeat the personal interviews.

30. In the relevant refusal-of-entry orders (see the text thereof in paragraph 19 of the judgment) only a reference to the identification of the applicants was made, without anything being said about a personal interview, and this is another strong indication, or even proof, that no such interview was conducted. The similarity between the orders, with their otherwise identical wording, generally reflects the failure to take account of the applicants’ personal circumstances.

31. I believe that no reasonable assumption in favour of the Government’s line of argument could be drawn from the fact that a number of specialists were working at the CSPA, as the majority accept. If there was an interview assisted by an interpreter or a cultural mediator, all of the persons involved in the interview should have been named by the Government and could have been made available to offer evidence about the interview and its context, but this was not even suggested. If the Government did not remember whether and in the presence of whom an interview was conducted, which seems to be the case, they could not logically and convincingly argue that, because, allegedly, there were interviews with all migrants, this might also have been the case for the applicants. One cannot base the proof of an alleged specific fact, in this case the alleged interviews of the applicants, on a general hypothesis as to a practice when, firstly, it is vague, uncertain and not particularly credible, and secondly, it might not have been applied in the specific case, for many reasons. A fact must, according to the rules of evidence and principles of logic, be specifically proved and cannot be supported only by generalities and uncertain assumptions. Not only must an interview be shown to have been conducted, but also, and, most importantly, its content must be proved. Thus, even if it were to be assumed that the applicants were asked some questions by the authorities, but the relevant details remain unknown, it could not be said with certainty that what occurred was a personal interview, and, most importantly, it would be impossible to know the answers that were given to the questions asked. Without a record and specific details, this Court would be unable to exercise its supervisory jurisdiction, as it would lack the opportunity to examine whether the procedural obligation of Article 4 of Protocol No. 4 was fulfilled.

32. By analogy, according to the constant case-law of the Court, when there is no official record of an individual’s arrest and ensuing detention, this failure or omission must in itself be considered a most serious shortcoming. More specifically, the absence of a record is considered to entail a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, securing the right to liberty and security. It discloses a most grave violation of that provision and is incompatible with the requirement of lawfulness and with the very purpose of Article 5 (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-III; and Kurt v. Turkey, 25 May 1998, § 125, Reports of Judgments and Decisions 1998-III). The lack of a proper record of an individual’s arrest and detention is thus sufficient for the Court to find that there has been a violation of Article 5 § 1 (see Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002 ‑ IV, and Menesheva, cited above, §§ 87-89). If this formality of keeping an official record is indispensable for the guarantee of a non-absolute right, as it is for the right under Article 5 § 1, one may wonder why such a formality should not, all the more so, be indispensable for the guarantee of an absolute procedural right, as is the right secured by Article 4 of Protocol No. 4.

33. The Court should have adopted, regarding the issue of the personal interview of which no evidence was produced by the Government, the same approach to acceptance of evidence as that which it followed concerning the alleged conditions on the ships on which the applicants were placed. On the latter issue, the Court rightly declined to accept the applicants’ allegations, since, as it found, those allegations were “not based on any objective reports, merely their own testimony” (see paragraph 204 of the judgment).

34. In the present judgment, emphasis is placed on the fact that “the applicants did not dispute the Government’s submission that ninety-nine social operators, three social workers, three psychologists, and eight interpreters and cultural mediators worked at the CSPA ...” (see paragraph 246). However, this alleged fact was irrelevant for the applicants in relation to their submission that they did not have a personal interview, as one cannot expect them to consider it important, for the purposes of their counter-argument, how many people were working at the CSPA at the material time and what they were doing. By the same logic, for a person who is a victim of a crime, it is immaterial how many policemen are working in the town where it is committed. His or her only concern might be that he or she was not protected by the police and that the police did not catch the perpetrator.

35. It is important to underline that the Government were not even in a position to specify whether, during the alleged interview, there was an interpreter “or” a cultural mediator actually present (see paragraph 224 of the judgment). Nor did they specify how many of these eight specialists were interpreters and how many were cultural mediators. In any event, there were only eight such specialists, and the reference to any other specialist, like social operators, social workers and psychologists (see paragraph 246 of the judgment), was, with due respect, not only irrelevant, but also misleading, because the allegation of the Government as to who could have been present at the interview was confined only to an interpreter or a cultural mediator. Moreover, at the CSPA, at the relevant time, there were a considerable number of foreign nationals, as is indicated in the judgment (see paragraphs 180 and 182). It is thus possible that the number of interpreters or cultural mediators may not have been sufficient in order to attend to all the needs as required. In other words, the administrative infrastructure needed to properly process so many expulsions in a short period of time was not necessarily adequate. One does not know, after all, how many of these interpreters or cultural workers were working on the date when the personal interviews allegedly took place. Since the burden of proof that a personal interview was actually conducted is on the Government, and, since they could not name the person who conducted the alleged interview or offer the Court any evidence from him or her as to the content of the interview, any such allegation could only be speculative, without having any evidential weight, not even on the standard of the “balance of probabilities”. However, I believe that the standard of proof in such cases must be high and specifically “beyond reasonable doubt”, since the procedural right guaranteed under Article 4 of Protocol No. 4 is absolute, and the procedural obligation of the respondent State thereunder is mandatory. In other words, a State which expels aliens en masse is presumed to be in violation of Article 4 of Protocol No. 4 unless it can prove, beyond reasonable doubt, that it followed due process regarding every alien in the group, through a procedure involving personal interviews.

36. The applicants argued that there were no records of their personal interviews, not because they were destroyed by fire, but because there was no personal interview to be recorded. Why should one accept the position of the Government, which despite it being their obligation to conduct a personal interview provided the Court with no evidence at all to that effect, and not accept the position of the three applicants that there were no such personal interviews and that the authorities signally failed to fulfil their procedural obligation under Article 4 of Protocol No. 4?

37. Not only were there no records available to prove that a personal interview had been conducted, there were also no records available to prove that an opportunity had been given to the applicants to notify the authorities of any reasons why they should remain in Italy or why they should not be returned. As to the opportunity allegedly given to the applicants to raise any claim if they so wished, again, the Government’s allegation was general in nature as can be seen from paragraph 225 of the judgment:

“In the Government’s view, the applicants, like all the other migrants, had definitely been informed of the possibility of lodging an asylum application, but they simply decided not to make use of that avenue.”

Consequently, the majority’s stance, accepting as persuasive such a general allegation of the Government, could not but amount to an assumption, as shown in paragraph 247 of the judgment:

“Nevertheless, in an expulsion procedure the possibility of lodging an asylum application is a paramount safeguard, and there is no reason to assume that the Italian authorities which heeded the wishes of other migrants who sought to rely on the non ‑ refoulement principle, would have remained passive in response to the submission of other legitimate and legally arguable impediments to their removal.”

38. The majority, accepting the allegation of the Government, say that “the applicants had an opportunity to notify the authorities of any reasons why they should remain in Italy or why they should not be returned” (paragraph 247 of the judgment). First of all, there was no allegation by the Government that they had kept any record of having informed the applicants about their rights, or evidence that such a record ever existed. But how could the allegation of the Government about informing the applicants be persuasive or valid, when no documentary evidence was produced to prove this. Even assuming that there was no documentary evidence because it was destroyed in the fire, the authorities had a positive obligation to afford the applicants a fresh opportunity to raise any claims they may have had and to make a record accordingly. In the absence of records, one cannot know if the authorities informed the applicants about their rights, and if the applicants reported anything relevant to the authorities. Why should one accept the allegation of the Government that they informed the applicants of the possibility of lodging an asylum application, when the authorities were following the summary procedure provided for by the bilateral agreements to expel the applicants?

39. In the judgment (paragraph 249) it is stated:

“Even assuming that [the applicants] encountered objective difficulties in the CSPA or on the ships ..., the Court is of the view that during that not insignificant period of time the applicants had the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Italy.”

Since, according to the majority, the period during which the applicants stayed in Italy was not insignificant, thus allowing them the time to draw the attention of the national authorities to any claim they had, this period could equally, and even more importantly, have been used by the authorities in order to repeat the alleged personal interviews, if the Government’s allegation that the records of the interview had been destroyed in the fire was true. In view of the facts of the case, and despite the vulnerable or difficult situation of the applicants, it is my opinion that the applicants were not afforded by the authorities an opportunity to have a personal interview or to raise any claim or to obtain legal assistance. It is true, moreover, that collective expulsions of aliens without procedural guarantees create among them feelings of uncertainty.

40. The Court unanimously found that the respondent State had violated Article 5 § 2 of the Convention, which provides that “[e]veryone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him”. This finding, I believe, is more consistent with my view, that the authorities showed a similar failure and lack of diligence and caution regarding the issue of personal interviews under Article 4 of Protocol No. 4, than with the stance of the Government, which argued that they had complied with the provisions of both Article 5 § 2 and Article 4 of Protocol No. 4. Why should one expect the authorities to inform the applicants about their rights, when they did not even inform them about the reasons for their arrest? After all, as has been said above, the simplified bilateral agreements between Italy and Tunisia were applied for the return of the applicants, in the absence of any representative of the Italian authorities in the readmission procedure.

41. With due respect, an argument drawn by the majority from the alleged fact that seventy-two migrants held in the Lampedusa CSPA had expressed their wish to apply for asylum (paragraph 247 of the judgment) is not quite relevant, firstly, because there is no examination in this case of the circumstances of these other migrants, who may or may not have undergone a personal interview, in order to compare them with the circumstances of the applicants, and, secondly, because, as has been said above, there was no record to prove what actually happened or what was said or claimed, if anything. In any event, why should one take into account what happened to those seventy-two migrants, about whom the Court has no information, and not take into account the Chamber’s findings that “a large number of individuals of the same origin around the time of the events in issue, had been subjected to the same outcome as the applicants”, that “the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned” (paragraph 213 of the judgment), and, ultimately, that “[t]hose elements sufficed for the Chamber to find that the applicants’ expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached ...” (ibid.)?

42. In conclusion, I believe that it is not proven that the applicants underwent personal interviews for the purposes of Article 4 of Protocol No. 4 and that the Italian authorities had signally failed to fulfil their procedural obligations.

D. Whether the adjective “collective” in Article 4 of Protocol No. 4 refers to the “measure” or the “procedure” leading to the expulsion of aliens, or whether it is quantitative in nature

43. The question arises as to what is the true meaning of the adjective “collective” in Article 4 of Protocol No. 4, which is of central importance for the determination of the notion of “collective expulsion”.

44. In the judgment (paragraph 244), though the question is raised as to whether the expulsion was “collective” in nature, nothing is said, however, about any necessary quantitative requirement for the meaning of the phrase “collective expulsion” under Article 4 of Protocol No. 4. However, in the judgment, it is assumed, without being clearly stated, that the application, had it not been for the other reasons given in the judgment, would not have been dismissed under Article 4 of Protocol No. 4 on the basis that the applicants were only three in number, not meeting any greater numerical threshold under the said provision, as was the view of two of the judges in the Chamber, Judges Sajó and Vučinić, in their joint partly dissenting opinion. According to these two judges, who interpreted Article 4 of Protocol No. 4 in the light of its historical origins (see paragraphs 9 and 18 of their opinion), there had not been a “collective expulsion” in the present case, as the expulsion was not directed at an “entire group”, implying a large-scale deportation of aliens.

45. The adjective “collective” in Article 4 of Protocol No. 4, referring to the phrase “expulsion of aliens”, could most logically be indicative of the measure or the procedure for handling the expulsion of aliens as a group, and not of the number of the aliens involved in a group expulsion. Otherwise, adjectives such as “massive” or “substantial” would have been used instead. The case-law of this Court (see references in the judgment, paragraph 237), when referring to the adjective “collective”, gives it the meaning of a group (“as a group”), without any distinction being made between groups according to the number of their members. Since Article 4 of Protocol No. 4 and the case-law of this Court do not distinguish on a numerical basis, neither should one introduce such a distinction, in accordance with the Latin maxim ubi lex non distinguit, nec nos distinguere debemus (7 Coke’s Reports , 5).

46. Support for the view that the adjective “collective” in Article 4 of Protocol No. 4 refers to a “measure” or “procedure”, rather than to a quantitative or numerical figure can be derived from the wording of the previous Article of the same Protocol, namely Article 3 § 1, which makes provision for the prohibition of expulsion of nationals. Article 3 § 1 reads as follows:

“1. No one shall be expelled, by means of an individual or a collective measure, from the territory of the State of which he is a national.”

The key words in Article 3 § 1 supporting the present argument are: the adjectives “individual” and “collective”, used disjunctively, and probably as antonyms; the phrase “by means of”; and the noun “measure”, to which the adjectives “individual” and “collective” refer.

47. It is clear, therefore, from the above-mentioned analysis that the same adjective, namely “collective”, which is used in the two provisions, Article 3 and Article 4 of Protocol No. 4, has or should have the same meaning, thus referring to the “measure” or “procedure” for the handling of expulsions of people as a group. It is a sound rule of construction, which I believe applies also in regard to the Convention’s provisions, to give the same meaning to the same words or phrases occurring in different parts of a legal instrument, unless it is otherwise made clear (see F.A.R. Bennion, Bennion on Statutory Interpretation: a Code, fifth edition, London, 2008, pp. 1160 and 1217 and the relevant common law case-law cited therein). In accordance with a systemic interpretation and the principle that the Convention should be interpreted as a whole and its different parts should be understood noscitur a sociis , Articles 3 and 4 of Protocol No. 4 should be read in conjunction and the phrase “collective expulsion” should be interpreted in association with the other terms of Article 3 § 1 in their context and reading Protocol No. 4 as a whole. Such an interpretation is in line with Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT) of 1969, which provides that: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This provision reflects the rule that the same words should have the same meaning, if the ordinary meaning is to be given to the same terms in a treaty. The Court in Hirsi Jamaa and Others (cited above, §§ 170-71), dealing with a different issue under Article 4 of Protocol No. 4 clearly referred to the above-mentioned principles of interpretation under the VCLT:

“170. In interpreting the provisions of the Convention, the Court draws on Articles 31 to 33 of the Vienna Convention on the Law of Treaties (see, for example, Golder v. the United Kingdom , 21 February 1975, § 29, Series A no. 18; Demir and Baykara v. Turkey [GC], no. 34503/97, § 65, ECHR 2008; and Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008).

171. Pursuant to the Vienna Convention on the Law of Treaties, the Court must establish the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of the provision from which they are taken. It must take account of the fact that the provision in issue forms part of a treaty for the effective protection of human rights and that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). The Court must also take account of any relevant rules and principles of international law applicable in the relations between the Contracting Parties (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005-VI; see also Article 31 § 3 (c) of the Vienna Convention). The Court may also have recourse to supplementary means of interpretation, notably the travaux préparatoires of the Convention, either to confirm the meaning determined in accordance with the methods referred to above or to clarify the meaning when it would otherwise be ambiguous, obscure or manifestly absurd and unreasonable (see Article 32 of the Vienna Convention).”

48. It is also apparent from the travaux préparatoires in respect of Protocol No. 4, as a supplementary means of interpretation under Article 32 VCLT, that the phrase “collective expulsion” is used as having the same meaning in regard to both nationals and aliens. In paragraph 32 of its report, the Committee of Experts on Human Rights to the Committee of Ministers (see Collected Edition of the “Travaux Préparatoires” of Protocol No. 4 , Strasbourg, 1976, p. 669), states the following:

“This provision [Article 4 of Protocol No. 4] refers to collective expulsion of aliens, including stateless persons. The collective expulsion of nationals is prohibited under Article 3, paragraph 1.”

49. Also, in paragraph 33 of the same report, the Committee of Experts states:

“It was agreed that the adoption of this Article [Article 4 of Protocol No. 4] and paragraph 1 of Article 3 could in no way be interpreted as in any way justifying measures of collective expulsion which may have been taken in the past.”

50. In addition, the Court in Hirsi Jamaa and Others , cited above, § 174, read Articles 3 and 4 of Protocol No. 4 in conjunction, regarding the meaning of “expulsion” in the two Articles, thus further supporting the proposed common meaning of the adjective “collective”:

“... Lastly, according to the drafters of Protocol No. 4, the word ‘expulsion’ should be interpreted ‘in the generic meaning, in current use (to drive away from a place)’. While that last definition is contained in the section relating to Article 3 of the Protocol, the Court considers that it can also be applied to Article 4 of the same Protocol.”

51. In Theory and Practice of the European Convention on Human Rights (P. Van Dijk, F. Van Hoof, A. Van Rijn and L. Zwaak (eds), fourth edition, Antwerp-Oxford, 2006), Chapter 23 on “Prohibition of Collective Expulsion of Aliens (Article 4 of Protocol No. 4)” (revised by J. Schokkenbroek, p. 955), it is elegantly explained that the decisive criterion for the application of Article 4 of Protocol No. 4 is the procedure leading to the expulsion and neither the number of which the group consists nor the link knitting together its members:

“Even then, however, the question of what exactly distinguishes the expulsion of a group of aliens from the expulsion of a numbers of individual aliens has not yet been answered. How large must such a group be? Is the expulsion of an entire family to be considered a collective expulsion? And is this the case, for instance, for the expulsion of an orchestra or sport team consisting of foreigners? If so, why then do such ‘groups’ deserve more protection than a foreigner who lives on his own or an individual foreign musician or sportsman? This problem can be solved only if one uses neither the number of which the group consists nor the link knitting together the members of that group as the decisive criterion of the application of Article 4, but the procedure leading to the expulsion. If a person is expelled along with others without his case having received individual treatment, his expulsion is a case of collective expulsion.”

52. Article 4 of Protocol No. 4 contains a procedural guarantee of human dignity which is inherent in the Convention. What the Court profoundly said in Bouyid (cited above, § 81) regarding the prohibition of inhuman or degrading treatment or punishment, that it is “[i]ndeed ... a value of civilisation closely bound up with respect for human dignity”, applies also, in my view, regarding the prohibition of collective expulsion, in the sense that the lack of the procedural guarantee of a personal interview is inconsistent with the Convention’s fundamental values of a democratic society. It must be emphasised that the rights under Articles 3 and 4 of Protocol No. 4 are both absolute rights, which apply without exception. As rightly put by Professor Feldman, human dignity “may need to be taken into account ... when interpreting the Convention rights themselves ...” (David Feldman, “Human Dignity as a Legal Value” – part II, Public Law, Spring 2000, p. 75). Therefore it would not have been the intention of the drafters of the Convention to limit the procedural guarantee of Article 4 of Protocol No. 4, underpinned as it is by human dignity, only to cases where the expulsion of people is numerically massive, and not also in the event of an arbitrary expulsion of smaller groups of aliens, not treating such people as a group under Article 4 of Protocol No. 4 and without requiring any reasonable and objective examination of the particular case of each alien in a group on a case-by-case basis involving a personal interview. The procedural guarantee of Article 4 of Protocol No. 4 is based on the idea that human herding and collective and indiscriminate removal diminish individuality and offend against personality, autonomy and human dignity. Thus, ultimately, it is human dignity that Article 4 of Protocol No. 4 seeks to protect. Again, it would be contrary to the idea of human nature and the purpose of the Convention for the Court to decide the issue in question on the basis of arithmetical considerations.

53. Even if, for the sake of argument, one were to be faced with two equally valid or arguable interpretations of Article 4 of Protocol No. 4, one would prefer that which favours the essence of the right ( in dubio in favorem pro libertate ) and, at the same time, does not limit the ambit of the said provision ratione personae, instead of the other, which would exclude from the protection of Article 4 small groups of aliens, like the group of applicants in the present case.

54. In conclusion, it is immaterial for the purposes of Article 4 of Protocol No. 4 that the applicants were only three in number. Besides, they were expelled back to their country as a group, merely on the basis of their nationality, something which the said provision prohibits.

E. Whether lawfulness of residence or stay and the purpose of entry into the territory of a State are criteria for the application of Article 4 of Protocol No. 4

55. Article 4 of Protocol No. 4 does not distinguish between groups of aliens according to whether they lawfully or unlawfully entered the territory of a State. Neither does it distinguish between different kinds of groups who unlawfully entered the territory of a State. So one ought not to make any such distinction, observing the above-mentioned principle ubi lex non distinguit, nec nos distinguere debemus. Otherwise the interpretation would be restrictive and contrary to the object of the provision.

56. The Committee of Experts, which finalised the draft of Article 4 of Protocol No. 4, made it absolutely clear (see “ Travaux Préparatoires” of Protocol No. 4 , cited above, p. 505, § 34), that the prohibition contained in this Article applies to aliens irrespective of whether or not they reside or are domiciled in the territory of the State they have entered:

“34. This provision refers to collective expulsion of aliens. The term ‘aliens’ shall here be taken to mean all those who have no actual right to nationality in a State, whether they are merely passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality. The collective expulsion of nationals is prohibited under Article 3.”

Apart from this clear explanation by the Committee of Experts, the evolution of the draft of Article 4 of Protocol No. 4 is interesting and supports the point at issue, namely that this Article was not confined only to aliens lawfully resident in the territory of a State. The original draft of the Article had actually, in its first two paragraphs, contained wording similar to that now to be found in Article 1 §§ 1 and 2 of Protocol No. 7, which deals expressly with individual expulsion of aliens lawfully resident in the territory of a State. But draft Article 4 of Protocol No. 4, in its third and last paragraph provided that: “Collective expulsion is prohibited” (ibid., pp. 447 and 454). This last paragraph, unlike the first two, was intended to apply irrespective of the nationality or residence of the persons expelled (ibid., pp. 481 and 505). The Committee of Experts ultimately decided not to include in Article 4 of Protocol No. 4 any provision concerning the individual expulsion of aliens lawfully residing in the territory of the State and it thus deleted the first two paragraphs, leaving only the expulsion of a group, but limiting it to aliens only, irrespective, of course, of the lawfulness of their residence (ibid., pp. 490, 505 and 507). The Committee excluded the collective expulsion of nationals from this provision, as they were to be covered by Article 3 of Protocol No. 4. It was not until Protocol No. 7 came into force, about twenty-one years after the entry into force of Protocol No. 4, that the individual expulsion of aliens lawfully resident in the territory of a State was finally regulated. However, as regards individual expulsions of aliens who are unlawfully within the territory of a State, there is no provision in the Convention or its Protocols specifically regulating such matters, and this omission may or may not have been intentional.

57. It is true that where the drafters of the Convention intended to deal with the expulsion of an alien “lawfully resident in the territory of a State”, or, with restrictions on the freedom of movement of “everyone lawfully within the territory of a State”, they used the adverb “lawfully”, as they did in Article 1 of Protocol No. 7 and Article 2 § 1 of Protocol No. 4, respectively. It follows that in Article 4 of Protocol No. 4, where the drafters did not use the adverb “lawfully” or another similar term, the meaning is intentionally not limited to lawful residents.

58. Thus, the procedural guarantee of Article 4 of Protocol No. 4 applies to all aliens, including stateless persons, no matter whether or not they have entered the territory of a State lawfully or have remained lawful entrants, although entry into the physical territory of the State, or residence in that territory, may not be required (see Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights, third edition, Oxford, 2014, at p. 961 and note 88).

59. The said provision, however, applies mainly to the case of expulsion of persons who are not lawfully resident in the territory of a State, for example, groups of would-be or failed asylum seekers, of Roma or gypsies seeking a camp, of migrant workers seeking employment, of economic migrants, etc. This can be understood in the light of another protocol to the Convention, namely Protocol No. 7, which, although it does not concern collective expulsion, deals specifically and in detail (Article 1 thereof) with procedural safeguards relating to the individual expulsion of aliens lawfully resident in the territory of a State. Unlike, Article 4 of Protocol No. 4, which applies irrespective of the lawfulness of the residence of the applicants, Article 1 of Protocol No. 7 applies only to lawful residents in a State. Accordingly, in Sulejmanovic and Sultanovic v. Italy , no. 57574/00, 14 March 2002, the complaint under Article 1 of Protocol No. 7 was rejected on the ground that the applicants were not considered lawfully resident in Italy, but the complaint under Article 4 of Protocol No. 4 was declared admissible.

60. The Convention is a living instrument and its purpose is to provide its guarantees in response to the changing needs of modern society, considering also that the movement of people from one country to another is easier nowadays than in the past, and the causes and reasons for such movements may differ in kind and in time. It is therefore immaterial if the applicants in the present case were economic migrants (if that is true, since no personal interview was conducted at the material time to ascertain the applicants’ true motives).

F. Whether the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in the application of Article 4 of Protocol No. 4

61. The question arises, whether, apart from the conduct of a personal interview which, in my view, is mandatory in all cases, the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in determining whether Article 4 of Protocol No. 4 has been complied with.

62. The answer should, in my view, be in the affirmative. The failure to conduct a personal interview, which should be mandatory, leads to a violation of the above provision per se . But, the conduct of a personal interview is the minimum procedural guarantee required by Article 4 of Protocol No. 4. This guarantee is to be secured by all High Contracting Parties to everyone within their jurisdiction, as provided by Article 1 of the Convention. If a State, despite the conduct of personal interviews, nevertheless ignores the personal circumstances of each alien forming a group and proceeds with the simultaneous expulsions of all members of the same group merely on the basis of their nationality, religion or membership of a group, without considering the individual circumstances of each alien, it still violates Article 4 of Protocol No. 4, because it goes against the aim of the said provision. One should not confuse the prohibition of collective expulsion in Article 4 of Protocol No. 4 on a basis other than the personal circumstances of each of the aliens involved, which is a procedural guarantee and at the same the aim of the provision, with any arguable substantive right an alien may have to remain in a territory. Thus the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in the application of Article 4 of Protocol No. 4 and must be considered as an additional requirement of its application.

63. This additional requirement, based on the very aim of Article 4 of Protocol No. 4, was enunciated in Čonka v. Belgium (no. 51564/99, § 63, ECHR 2002-I), the facts of which, together with this requirement, are appropriately discussed in the following passage from Theory and Practice of the European Convention on Human Rights (cited above, p. 956):

“In the Čonka Case the Court formulated an important additional requirement. The case concerned a group of Slovak gypsies who, pending their appeals against the refusals to grant asylum, were asked to report to the police station in order to ‘complete asylum request files’. However, upon their arrival at the police station removal orders were served upon them and a few hours later they were detained in a holding centre and subsequently removed to Slovakia. The Court held that the fact that a ‘reasonable and objective examination of the particular case of each individual alien of the group’ has taken place (as was the case here) does not mean that the circumstances surrounding the implementation of the expulsion decisions play no role in the determination of whether Article 4 has been respected. In this particular case the Court express doubts as to the legal basis for the manner in which the Belgian authorities had proceeded, also in view of the large numbers of individuals of the same origin that were concerned. These doubts were reinforced by a set of circumstances: the fact that the political authorities had announced beforehand that operations of this type would be held and had given instructions for them; the simultaneous convocation to report to the police station; the identical wording of the arrest and expulsion orders; the great difficulty for the persons concerned to contact a lawyer; and the fact that the asylum procedure had not been completed. The Court concluded [§ 63] that ‘at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account’.”

64. The interpretation of a legal provision according to its aim is particularly important in a convention such as the European Convention on Human Rights and the Protocols thereto, which are aimed at protecting human rights in a practical and effective manner. Because of this, such interpretation, like that of Article 4 of Protocol No. 4, should go to the core or the heart of the right requiring protection, and it must therefore be broad and effective in terms of its above-mentioned object and purpose.

65. Collective expulsion of aliens merely on the basis of their nationality, as was the case in the present application, also offends against the principle of democracy, which is one of the fundamental principles of the Convention, specifically emphasised in its preamble. This principle does not allow or tolerate discrimination against aliens on the basis of their nationality. As has been said above, the prohibition of Article 4 of Protocol No. 4 is not only a prohibition of arbitrariness but also a prohibition of discrimination, in other words a prohibition of expulsion of aliens merely because they belong to a certain group. Collective expulsion can also be discriminatory because of its disproportionate character.

66. In conclusion, the guarantees of Article 4 of Protocol No. 4 are, firstly, the conduct of a personal interview, and secondly, protection from an expulsion decision, and its implementation, based merely on the ground of membership of aliens in a group, disregarding their personal circumstances; a two-fold test should therefore be applied.

67. In my view, neither of these guarantees was satisfied in the present case, since no interview was conducted and the expulsion of the applicants was carried out merely on the basis of their nationality, pursuant to the bilateral agreements between Italy and Tunisia.

68. Accordingly, there has, in my view, been a violation of Article 4 of Protocol No. 4.

G. Whether there has been a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4

69. I agree with the Chamber judgment (§ 172) that there has also been a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4.

70. It is clearly stated in the refusal-of-entry orders that: “The lodging of an appeal does not suspend the enforcement ( efficacia ) of the present order” (see paragraph 19 of the judgment). Consequently, the lodging of an appeal could not meet the requirement of Article 13 of the Convention for suspensive effect, as established by the case-law cited in the Chamber judgment (Chamber judgment, § 172).

71. In addition, according to the case-law, “the requirement under Article 13 that execution of the impugned measure be stayed cannot be regarded as a subsidiary aspect” (ibid.).

72. With all due respect to the majority, I disagree that the lack of suspensive effect of a removal decision, pending an appeal, in a collective expulsion case, does not, in itself, constitute a violation of Article 13, and that the criterion of suspensive effect of a removal order may depend on whether the applicants allege that there is a real risk of a violation of their rights guaranteed by Articles 2 and 3 in the destination country (see paragraphs 277 and 281 of the judgment). This, ultimately, would mean that the suspensive effect of a removal order will be dependent on the discretion of the immigration authorities, to assess, in advance and before an appeal decision is taken, whether an alien has an “arguable” complaint that he or she faces a violation of Articles 2 or 3 of the Convention. However, even assuming that the above approach was correct, and the immigration authorities were convinced that there was a real risk of violations of rights guaranteed by Articles 2 and 3, the refusal-of-entry orders, based on the bilateral agreements between Italy and Tunisia, would probably remain unaffected, still prohibiting suspension of enforcement in the case of the lodging of an appeal.

73. The approach I would follow, which I believe is the correct one, is reinforced by the following obiter dictum of the Court in De Souza Ribeiro v. France ([GC], no. 22689/07, § 82, ECHR 2012):

“Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (see Čonka , cited above §§ 81-83, and Hirsi Jamaa and Others , cited above, § 206).”

The above passage was an obiter dictum and not the ratio decidendi of the case, because the issue in relation to which it was stated was an issue of compliance with Article 13 of the Convention taken in conjunction with Article 8 of the Convention and not an issue of compliance of Article 13 taken in conjunction with Article 4 of Protocol No. 4. Still, like any other obiter dictum of the Grand Chamber, this one is of highly persuasive authority. The majority decided that this dictum “cannot be read in isolation”, but that “it must be understood in the light of the paragraph as a whole”, which deals with obligations arising from Articles 2 and 3 of the Convention. They also emphasised that the two cases referred to in the above dictum concerned Article 3 issues and not situations where there was any allegation by the applicants that their expulsion was collective in nature.

74. With due respect, I do not agree with the above reasoning. Though it is correct that the said dictum should not be read in isolation, it cannot, however, be understood only in the light of the paragraph ( De Souza Ribeiro , § 82) where it is to be found, as a whole, but also in the light of the section where the paragraph is to be found, as a whole. This section is entitled: “Compliance with Article 13 of the Convention taken in conjunction with Article 8” . Accordingly, what is said in paragraph 82 in relation to compliance with Article 13 taken in conjunction with Articles 2 and 3 of the Convention and Article 4 of Protocol No. 4 is said obiter , because the relevant issue there was compliance with Article 13 taken together with Article 8. The meaning of paragraph 82, as I understand it, is that Article 13 of the Convention can apply in conjunction with (i) Article 2 of the Convention, (ii) Article 3 of the Convention, or (iii) Article 4 of Protocol No. 4, independently and separately, without the latter depending on whether there is also an issue concerning Article 2 or Article 3. This is exactly the meaning of the word “Lastly” in the said passage which leaves no doubt on the matter. In Hirsi Jamaa and Others (cited above, § 207) it is clear that, regarding compliance with Article 13 taken in conjunction with Article 3 and Article 4 of Protocol No. 4, the Court does not subject an issue of Article 4 of Protocol No. 4 to an obligation under Article 3, but deals with them separately:

“The Court concludes that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4 to the Convention.”

Moreover, the other case to which the dictum in question refers, namely ÄŒonka (cited above), does not seem to support the view of the majority, in the light, inter alia , of the wording of paragraph 82 thereof (emphasis added):

“82. Firstly, it is not possible to exclude the risk that in a system where stays of execution must be applied for and are discretionary they may be refused wrongly, in particular if it was subsequently to transpire that the court ruling on the merits has nonetheless to quash a deportation order for failure to comply with the Convention, for instance, if the applicant would be subjected to ill-treatment in the country of destination or be part of a collective expulsion . In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13. ”

75. I believe that, again, like the procedural obligation under Article 4 of Protocol No. 4, the said obligation under Article 13, when it applies in relation to Article 4 of Protocol No. 4, is mandatory and not qualified by any exception, this being the only safeguard against arbitrariness. Otherwise, it would not serve to ensure the mandatory nature of the procedural obligation of Article 4 of Protocol No. 4, as I believe it should do, or the principle of effectiveness of the Convention provisions, if Article 13 were not to have an automatic suspensive effect in respect of the enforcement of a removal order, taken under Article 4 of Protocol No. 4.

76. Finally, the procedural right guaranteed in Article 4 of Protocol No. 4 would lose its requisite protection, if under Article 13 a removal order did not have an automatic suspensive effect where an appeal is lodged.

H. Award in respect of non-pecuniary damage for the violations of Article 4 of Protocol No. 4 and of Article 13 of the Convention taken together with the former Article

77. My findings set out above, that there have been violations of Article 4 of Protocol No. 4 and of Article 13 of the Convention taken together with the former Article, would have led to an increase in the amount of the award in respect of non-pecuniary damage, the determination of which, however, could only be theoretical, since I am in the minority.

[1] . The press release can be consulted at:

http://www1.interno.gov.it/mininterno/export/sites/default/it/sezioni/sala_stampa/notizie/immigrazione/000073_2011_04_06_accordo_Italia-Tunisia.html .