The ECHR found a violation of the requirements of Article 5, paragraphs 1, 2, 4, and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article 3.

Заголовок: The ECHR found a violation of the requirements of Article 5, paragraphs 1, 2, 4, and Article 13 of the Conve Сведения: 2018-08-11 05:48:00

Decision of the ECHR of 15 December 2016 in the case of Khlaifia and Others v. Italy (application no. 16483/12).

In 2012, the applicants were assisted in preparing the application. Subsequently, the application was and communicated to Italy.

The case successfully examined the complaint of the applicants who illegally migrated to another state, to detain them and expel citizenship. There have been violations of the requirements of Article 5, paragraphs 1, 2, 4, and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article 3. There have been no violations of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 4 of the Protocol N 4 to the Convention, Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 to the Convention.

 

CIRCUMSTANCES OF THE CASE


The applicants, citizens of Tunisia, in September 2011, together with a group of migrants swam out of Tunisia in boats to reach the shores of Italy. After spending several hours at sea, these self-made boats were intercepted by the Italian Coast Guard, which escorted them to the port of Lampedusa, where the applicants were placed in the center for illegal migrants (hereinafter referred to as CSPA). Subsequently, the center was burned during the riots, and the applicants were placed on ships moored in the harbor of Palermo. The deportation orders were issued against the applicants. Before landing on planes flying to Tunisia, they were received by the Consul of Tunisia, who established their identity. Upon their arrival in Tunisia, they were released. These events lasted approximately 12 days. In 2012, the judge dismissed complaints from several associations about abuse of authority and arbitrary detention.

The judgment of 1 September 2015 (see "Fact Sheet on the case-law of the European Court of Human Rights" No. 188), the Chamber of the European Court found a violation of the requirements of Article 4 of Protocol No. 4 to the Convention regarding the lack of adequate guarantees for a real and specific consideration of the individual situation of each violation of the requirements of Article 13 of the Convention because of the absence of a suspensive force of applicable remedies, a breach of the requirements of Article 5 § 1 of the Convention (lack of a legal basis for deprivation of liberty) and Article 5 §§ 2 and 4 of the Convention, a violation of the requirements of Article 3 of the Convention in relation to the conditions of detention in the center and the absence of a violation of the requirements of Article 3 of the Convention as a result of detention on board marine vessels, as well as a violation of Article 13 of the Convention in with the lack of remedies in this regard.

On 1 February 2016, at the request of the Government of the respondent State, the case was referred to the Grand Chamber of the European Court.


ISSUES OF LAW


Concerning compliance with Article 4 of Protocol No. 4 to the Convention. Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances. The requirements of this provision can be fulfilled if every foreigner has a real and effective opportunity to present arguments against his expulsion and if these arguments are duly considered by the authorities of the respondent State.

In the present case, the applicants, who could reasonably have expected to return to Tunisia, were in Italy from nine to 12 days. Even assuming that they faced objective difficulties in CSPA or on ships, during this significant period they had the opportunity to draw the attention of the domestic authorities to any circumstances that could affect their status and give them the right to stay in Italy.

First, the applicants passed two identity checks. (a) The first identity check, according to the Government of the respondent State, took place upon the applicants' arrival at the reception center and included their photographing and obtaining their fingerprints. Although the respondent Government could not provide the applicants' personal files, they explained this shortcoming by a fire in the center for migrants. As for the alleged lack of communication and understanding between migrants and the Italian authorities, it was reasonable to assume that the difficulties were mitigated by the unchallenged presence at the center of some 100 social operators, including social workers, psychologists and about eight translators and cultural mediators.

(b) The second identity check took place prior to the applicants' landing on aircraft flying to Tunisia: they were accepted by the consul of Tunisia, who established their identity. Even though the verification was carried out by a representative of a third state, it allowed the citizenship of migrants to be established and granted them the last chance to argue against their expulsion on such grounds as age or nationality (some migrants were not returned in this regard).

Secondly, although orders for prohibition of entry were made in similar terms and the only difference was the personal data of each migrant, the relatively simple and standardized nature of orders could be explained by the fact that the applicants did not have valid travel documents and did not refer to the fact that they were afraid of the cruel treatment in the event of their return or that there are other legal obstacles to their expulsion. Thus, it was not unreasonable in itself that these orders were motivated only by the citizenship of the applicants, by an indication of their illegal crossing of the border and by the absence of any situations provided for by applicable law (political asylum, granting refugee status or taking temporary protective measures on humanitarian grounds) .

Thirdly, it was not crucial that a large number of migrants from Tunisia were expelled during the period relevant to the case file, or that the three applicants were expelled almost simultaneously. This could be explained by the outcome of a series of orders prohibiting entry. These considerations are sufficient to distinguish the present case from the cases of "Chonka v. Belgium" (Conka v. Belgium) (Judgment of 5 February 2002, application no. 51564/99, "Information Bulletin on the Court's case-law on Human Rights "No. 39)," Hirsi Jamaa and Others v. Italy "(Judgment of 23 February 2012, application no. 27765/09," European case-study case sheet " Human Rights Court "No. 149)," Georgia v. Russia (I) "((Georgia v. Russia) (I) (Post an anouncement of the Grand Chamber of July 3, 2014, complaint No. 13255/07, "Fact sheet on the case-law of the European Court of Human Rights" No. 176)) and "Sharifi and Others v. Italy" and Greece) (Judgment of 21 October 2014, complaint No. 16643/09, "European Court of Human Rights case-book" No. 178)).

In addition, the applicants' representatives were unable to indicate at least some factual or legal basis which, in accordance with international law or domestic law, could justify the presence of their clients on Italian territory and prevent their expulsion. This questioned the usefulness of individual interviews in the present case. As a result, the applicants passed two identity checks, their nationality was established, and they were given a real and effective opportunity to put forward their arguments against their expulsion.


DECISION


In the case, the requirements of Article 4 of Protocol No. 4 were not violated (adopted by 16 votes in favor, one at a time).

Concerning compliance with Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 to the Convention. In the present case, the prohibition of entry orders explicitly stated that these persons could appeal to Magistrate Agrigento for 60 days.

There was no reason to doubt that, in this context, the justice of the peace could have considered any complaint of failure to take into account the personal situation of a particular migrant and therefore based essentially on the collective nature of expulsion. Regarding the fact that this complaint had no suspensive effect, an in-depth analysis in the case of De Souza Ribeiro v. France (Decree of the Grand Chamber of the European Court of 13 December 2012, complaint No. 22689 / 07, "Factsheet on the case-law of the European Court of Human Rights" No. 158), in comparison with the judgments in the above cases, Chonki and Hirsi Jamaa and others, compelled the Court to draw the following conclusions.

If the applicant did not claim that he would encounter a violation of the requirements of Article 2 or 3 of the Convention in the country of destination, expulsion from the territory of the respondent State would not endanger him from causing damage of a potentially irreversible nature. In such cases, the Convention does not create an absolute obligation for the State to guarantee an automatically discontinuing remedy, but only requires that the person concerned be given an effective opportunity to challenge the expulsion decision by carefully examining his complaints by an independent and impartial domestic authority. In the present case, an available remedy satisfies these requirements.

Moreover, the fact that the remedy available to the applicant did not have a suspensive effect was not a decisive consideration for the conclusion made in the case of Di Soza Ribeiro v. France. This conclusion was based on the argument that the "provable" complaint of the applicant under Article 8 of the Convention was rejected very hastily (his expulsion to Brazil was effected within less than an hour after the complaint was filed with the administrative court).


DECISION


In the case, the requirements of Article 13 of the Convention in interrelation with Article 4 of Protocol No. 4 were not violated (adopted by 16 votes in favor, one at a time).

Concerning compliance with Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4 to the Convention. In the present case, the prohibition of entry orders explicitly stated that these persons could appeal to Magistrate Agrigento for 60 days.

There was no reason to doubt that, in this context, the justice of the peace could have considered any complaint of failure to take into account the personal situation of a particular migrant and therefore based essentially on the collective nature of expulsion. Regarding the fact that this complaint had no suspensive effect, an in-depth analysis in the case of De Souza Ribeiro v. France (Decree of the Grand Chamber of the European Court of 13 December 2012, complaint No. 22689 / 07, "Factsheet on the case-law of the European Court of Human Rights" No. 158), in comparison with the judgments in the above cases, Chonki and Hirsi Jamaa and others, compelled the Court to draw the following conclusions.

If the applicant did not claim that he would encounter a violation of the requirements of Article 2 or 3 of the Convention in the country of destination, expulsion from the territory of the respondent State would not endanger him from causing damage of a potentially irreversible nature. In such cases, the Convention does not create an absolute obligation for the State to guarantee an automatically discontinuing remedy, but only requires that the person concerned be given an effective opportunity to challenge the expulsion decision by carefully examining his complaints by an independent and impartial domestic authority. In the present case, an available remedy satisfies these requirements.

Moreover, the fact that the remedy available to the applicant did not have a suspensive effect was not a decisive consideration for the conclusion made in the case of Di Soza Ribeiro v. France. This conclusion was based on the argument that the "provable" complaint of the applicant under Article 8 of the Convention was rejected very hastily (his expulsion to Brazil was effected within less than an hour after the complaint was filed with the administrative court).


DECISION


In the case, the requirements of Article 13 of the Convention in interrelation with Article 4 of Protocol No. 4 were not violated (adopted by 16 votes in favor, one at a time).

Concerning compliance with Article 3 of the Convention. The applicants complained about the conditions of their detention. Recalling that factors that entailed an increase in the arrival of migrants can not absolve Member States from their obligations, the Court considered that it would be unnatural to consider the facts of the case outside the context of humanitarian necessity.

2011 was marked by a major migration crisis. The massive arrival of North African migrants (more than 50,000 per year) to Lampedusa and Linosa undoubtedly created organizational, logistical and structural difficulties for the Italian authorities.

In addition to the general situation, there were some specific problems immediately after the applicants arrived, which contributed to increasing existing difficulties and creating a climate of heightened tension: unrest organized by migrants at the reception center, an attempt to set fire to the center, a demonstration of 1,800 migrants in the streets of Lampedusa, clashes between local residents and groups foreigners who threatened to blow up fuel tanks, and acts of self-control and vandalism.

These details demonstrate that the state faced many problems as a result of an exceptionally large number of migrants and that the authorities were burdened with a multitude of tasks, since they had to ensure the well-being of migrants and local residents and support law and order. The decision to concentrate the initial reception of migrants in Lampedusa can not by itself be criticized. Due to the geographical location of the island, it was not unreasonable to transfer the survivors to the nearest reception center.

(a) Conditions at the reception center. The Court, having noted the following paragraphs, concluded that the conditions in which the applicants were held at the center did not reach the threshold of severity required in order that they could be characterized as inhuman or degrading.

(i) While some reports of parliamentary committees or non-governmental human rights organizations indicate overcrowding in the center, as well as inadequate conditions for hygiene, privacy and external contacts, their conclusions, however, have been counterbalanced by the report of the Parliamentary Assembly of the Council of Europe for a period close to the time of residence of the applicants there, therefore, these conditions could not be compared with those that led to the establishment by the European Court of a violation of Article 3 of the Convention in other cases Oh.

(ii) Even though the number of square meters per person in the center's rooms was not established and even assuming that the maximum capacity of the center was exceeded by 15 to 75%, the freedom of movement used by applicants in the center had to compensate for these shortcomings.

(iii) Although the applicants were weakened by a dangerous sea voyage, they were not particularly vulnerable (they were not seekers of asylum, did not claim to have traumatic experience in the country of origin, did not belong to the category of elderly or underage people and did not suffer from any diseases).

(iv) They were not restricted in food, water or medical care and were not exposed to abnormal weather conditions.

(v) Given the short duration of their stay (three to four days), the lack of contact with the outside world did not have serious individual consequences.

(vi) While the authorities had an obligation to take measures to find other satisfactory reception facilities of sufficient size and to transfer there a sufficient number of migrants, in the present case the Court could not consider whether this obligation was fulfilled, since only two days later after the arrival of the last two applicants, CSPA in Lampedusa was destroyed by fire during the riots.

(vii) In general, the situations that the European Court sometimes found to be in breach of Article 3 of the Convention were more intense or protracted.


DECISION


The requirements of Article 3 of the Convention were not violated (unanimously).

(b) Conditions aboard two ships. The threshold of severity of treatment was not reached also during the stay on ships.

Firstly, the applicants did not provide documents or testimony from third parties indicating signs of alleged ill-treatment or confirming their version of the facts (overcrowding, insults, lack of hygiene), so there was no reason to transfer the burden of proof.

Secondly, on the contrary, from a judicial decision (based on the information agency's message and in the absence of grounds for doubting that it was rendered with the requisite procedural guarantees), one can see that the members of parliament visited the ships and he saw that the migrants were kept in satisfactory conditions.


DECISION


The requirements of Article 3 of the Convention were not violated (unanimously).

The Court also unanimously noted that there had been a violation of the requirements of Article 5 § 1 of the Convention (and therefore paragraphs 2 and 4 of Article 5 of the Convention) in connection with the lack of a legal basis for the deprivation of liberty of the applicants. Their actual detention in the absence of any formal decision deprived them of their constitutional guarantees of habeas corpus granted to persons held at the reception center, and even in the context of the migration crisis, this could not be compatible with the purpose of Article 5 of the Convention. In addition, there was a violation of Article 13 of the Convention, in conjunction with Article 3 of the Convention, regarding conditions of detention.

 

COMPENSATION


In the application of Article 41 of the Convention. The Court awarded EUR 2,500 to each of the applicants in respect of non-pecuniary damage.

 

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