Arab Spring migrants held on Lampedusa in 2011 suffered Convention violations, rules Grand Chamber

In the case of Khlaifia and Others v. Italy, the court held that there had been: a violation of article 5 § 1 (right to liberty and security) of the European Convention on Human Rights; a violation of article 5 § 2 (right to be informed promptly of the reasons for deprivation of liberty) of the Convention; a violation of article 5 § 4 (right to a speedy decision on the lawfulness of detention); no violation of article 3 (prohibition of inhuman or degrading treatment) as regards the conditions in the Lampedusa reception centre; no violation of article 3 as regards the conditions on the ships in Palermo harbour; and - by sixteen votes to one, that there had been no violation of article 4 of protocol no. 4 to the Convention (prohibition of collective expulsion of aliens), It held unanimously, that there had been a violation of article 13 (right to an effective remedy) taken together with article 3; by sixteen votes to one, that there had been no violation of article 13 taken together with article 4 of protocol no. 4.

The case concerns the holding, in a reception centre on the island of Lampedusa then on ships in Palermo harbour (Sicily), of irregular migrants who arrived in Italy in 2011 following the Arab Spring in their country, and their subsequent removal to Tunisia.

The court observed that their deprivation of liberty without any clear and accessible basis did not satisfy the general principle of legal certainty and was incompatible with the need to protect the individual against arbitrariness. The refusal-of-entry orders issued by the Italian authorities had made no reference to the legal and factual reasons for the applicants’ detention and they had not been notified of them “promptly”.

The court lastly noted that the Italian legal system had not provided them with any remedy by which they could have obtained a judicial decision on the lawfulness of their detention.

The court found, however, that the conditions of the applicants’ detention in the Lampedusa centre and on the ships in Palermo harbour had not constituted inhuman or degrading treatment.

As to the prohibition of the collective expulsion of aliens, the court found that article 4 of protocol no. 4 did not guarantee the right to an individual interview in all circumstances. The requirements of that provision were satisfied where each alien had the possibility of raising arguments against his or her expulsion and where those arguments had been examined by the authorities of the respondent state.

Having been identified on two occasions, and their nationality having been established, the applicants had had a genuine and effective possibility of raising arguments against their expulsion.

The court lastly observed that the lack of suspensive effect of a remedy against a removal decision did not in itself constitute a violation of article 13 where the applicants did not allege a real risk of a violation of the rights guaranteed by articles 2 and 3 of the Convention in the destination country.