Last Updated on March 30, 2023 by LawEuro
Legal summary
March 2023
J.A. and Others v. Italy – 21329/18
Judgment 30.3.2023 [Section I]
Article 3
Degrading treatment
Inhuman treatment
Tunisian sea-migrants detained in hotspot centre for ten days in poor material conditions: violation
Article 5
Article 5-1-f
Prevent unauthorised entry into country
Arbitrary detention of Tunisian sea-migrants in hotspot centre without clear and accessible legal basis and in absence of reasoned decision: violation
Article 4 of Protocol No. 4
Prohibition of collective expulsion of aliens
Removal to Tunisia of Tunisian sea-migrants without proper regard to their individual situations when issuing refusal-of-entry and removal orders: violation
Facts – In October 2017 the four applicants left the Tunisian coast aboard makeshift vessels and, following an emergency at sea, were rescued by an Italian ship which took them to island of Lampedusa. Upon arrival they were placed in the Early Reception and Aid Centre (“CIE”), a designated “hotspot” facility for migrants, where they remained for ten days before being transferred by bus to Lampedusa Airport. There, they were asked to sign refusal-of-entry orders, their wrists were secured with Velcro straps and their mobile phones were taken away from them. They were forcibly removed on the same day by the Italian authorities to Tunisia by airplane.
Law – Article 3:
The applicants had submitted abundant information, including photographs and several reports, regarding the shortcomings of the material conditions in the Lampedusa hotspot, which had not been disputed. Multiple national and international sources had attested to those critical conditions during the relevant period and, in particular, to the centre being overcrowded, run down and dirty, lacking services and space (with regard in particular to beds), and to its general poor hygiene and inadequacy. Given the above, as well as the Government’s failure to produce sufficient elements showing that the applicants’ individual conditions of stay could be deemed as acceptable, the Court was satisfied that at the material time the Lampedusa hotspot, where the applicants had remained for ten days, had provided poor material conditions amounting to inhuman and degrading treatment.
Conclusion: violation (unanimously).
Article 5 §§ 1, 2 and 4:
Only the first limb of Article 5 § 1 (f) applied to the facts of the case – specifically from the day of the applicants’ arrival in the Lampedusa hotspot, until their transfer from there to the airport.
In assessing whether the restriction of their liberty had complied with the “lawfulness” requirement, and in particular whether it had been based on the “substantive and procedural rules of national law”, the Court first drew attention to the definition of “hotspot”, as related in particular to their function. Citing guidelines established by the European Commission’s European Agenda on Migration of 13 May 2015 and the Italian Ministry of the Interior’s Roadmap of 28 September 2015, the Court held that hotspots, namely existing reception facilities used to implement the “hotspot approach”, had not been intended, at least at the point in time relevant to the present case , to serve as detention centres, but rather as identification and dispatching facilities. The relevant national legislation had identified two types of existing facilities that had been apt to serve as hotspots, but the Government had not shown that the Italian regulatory framework, including EU rules that might be applicable, provided clear instructions concerning the detention of migrants in those facilities. There was no reference in the domestic law to substantive and procedural aspects of detention or other measures entailing deprivation of liberty that could be implemented in respect of the migrants concerned in hotspots. Nor had the Government submitted any legal source stating that the Lampedusa hotspot was to be classified as a CIE – where migrants, under certain conditions, might be lawfully detained under domestic legislation. In addition, reports of independent observers as well as of national and international organisations, had unanimously described the Lampedusa hotspot as a closed area with bars, gates and metal fences that migrants were not allowed to leave, even once they had been identified, thus subjecting them to a deprivation of liberty which was not regulated by law or subjected to judicial scrutiny.
The Court accepted that, under the Convention, at the moment migrants’ attempt to be admitted into the territory of a Contracting Party, a limitation of their freedom of movement in a hotspot might be justified – for a strictly necessary, limited period – for the purpose of identification, registration and interviewing, with a view, once their status had been clarified, to their possible transfer to other facilities. In those circumstances, the detention of asylum seekers waiting for their request to be processed – first limb of Article 5 § 1 (f) – or the detention of irregular migrants in view of their removal – second limb of Article 5 § 1 (f) – was regulated by law. However, in the circumstances of the present case, the impossibility for the migrants to lawfully leave the closed area of the Lampedusa hotspot did not fall under those situations and had clearly amounted to a deprivation of the applicants’ personal liberty under Article 5, all the more so considering that the maximum duration of their stay had not been defined by any law or regulation and the material conditions of their stay had been deemed to be inhuman and degrading. Although the nature and function of hotspots under domestic law and the EU regulatory framework might have changed considerably over time, at the time of the facts of the instance case, the Italian regulatory framework had not allowed for the use of the Lampedusa hotspot as a detention centre for aliens. Thus, the organisation of hotspots would have benefited from the intervention of the Italian legislature to clarify their nature as well as the substantive and procedural rights of the individuals staying therein.
In the light of the above and bearing in mind that the applicants had been placed at the Lampedusa hotspot by the Italian authorities for ten days without a clear and accessible legal basis and in the absence of a reasoned measure ordering their retention, before being removed to their country of origin, the Court found that the applicants had been arbitrarily deprived of their liberty, in breach of the first limb of Article 5 § 1 (f). In the absence of a clear and accessible legal basis for detention, the Court failed to see how the authorities could have informed the applicants of the legal reasons for their deprivation of liberty or have provided them with sufficient information enabling them to challenge the grounds for their de facto detention before a court.
Conclusion: violation (unanimously).
Article 4 of Protocol No.4:
It had not been disputed that no interviews had been held before the signing of the refusal-of-entry orders. Further, the text of those orders concerning two of the applicants – the remaining two not having been provided with a copy – did not disclose any examination of the applicants’ personal situation. In addition, taking into account the circumstances of the applicants’ removal, the short lapse of time between the signature by the applicants of the refusal-of-entry orders and their removal, the fact that they allegedly had not understood the content of the orders and that two of them had not been provided with a copy, the Court found that the Government had not sufficiently shown that the applicants had benefited from the possibility of appealing against those decisions.
Accordingly, the refusal-of-entry and removal orders issued in the applicants’ case had not had proper regard to their individual situations and those decisions had thus constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4.
Conclusion: violation (unanimously).
Article 41: EUR 8,500 to each applicant in respect of non-pecuniary damage.
(See also Khalifa and Others v. Italy [GC], 16483/12, 15 December 2016, Legal Summary).
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