Italy lose in Europe over asylum seeker boat interception – Henry Oliver

26 February 2012 by Henry Oliver

Hirsi Jamaar and Others v. Italy (Application no. 27765/09) – Read judgment

The European Court of Human Rights has held that a group of Somalian and Eritrean nationals who were intercepted by Italian Customs boats and returned to Libya fell within the jurisdiction of Italy for the purposes of Article 1 of the European Convention on Human Rights . The return involved a violation of Article 3 (Anti-torture and inhumane treatment), Article 4 of Protocol 4 (collective expulsion of aliens), and  Article 13 (right to an effective remedy). The patrols that returned migrants to Libya were in breach of the non-refoulement principle.

The applicants were eleven Somalian nationals and thirteen Eritrean nationals who were part of a group of two hundred migrants who left Libya in order to reach the Italian coast. On 6^th May 2009 Italian ships intercepted them 35 miles south of Lampedusa and returned them to Triploi, in Libya. During the voyage the migrants were not told where they were going (they assumed they were being taken to Italy), nor were they identified.

The Italian Minister of the Interior gave a statement on 7^th May 2009 saying that the operation was the result of a bilateral agreement with Libya and was “an important turning point in the fight against clandestine immigration.” In 2009 Italy carried out nine operations to turn migrants arriving by sea around before they reached the Italian coast.

Between June and October 2009 fourteen of the migrants were granted refugee status by the office of the UN High Commissioner for Refugees in Tripoli.

Jurisdiction and Article 1

Under international law a vessel sailing the high seas is subject to the jurisdiction of the State of the flag it is flying. This principle is enshrined in the domestic law of Italy, in the Navigation Code. The court did not accept Italy’s explanation that these were “rescue operations”. Nor did they accept that Italy was not responsible for what happened to the migrants because it only exerted “minimal control”.

Citing the case of Medvedyev and Others v. France ([GC], no. 3394/03, 29 March 2010), the court observed that the events took place entirely on board Italian ships, and the crews were comprised of entirely Italian personnel. The migrants were under the “continuous and exclusive de jure and de facto control of the Italian authorities.”

Therefore, the events were within Italy’s jurisdiction.

Article 3

The Article 3 question has two parts:

1. the risk of inhuman treatment in Libya;
2. the danger of being returned to their countries of origin.

Degrading and Inhuman treatment in Libya

The court assessed what the “foreseeable consequences” of removal were both in light of the general situation and their personal circumstances. When assessing the general situation the court attaches importance to recent reports.  The court also noted that despite the problems that southern European states are encountering with “an influx of migrants”, they cannot be absolved of the absolute nature of their provisions under Article 3.

The court looked at a variety of reports by organisations such as Amnesty International, Human Rights Watch, and the US State Department. They concurred on the fact that “no rule governing the protection of refugees was complied with by Libya.” Anyone entering illegally was kept in inhuman conditions: no distinction is made between clandestine migrants and asylum seekers. The fact that Libya had ratified international treaties guaranteeing respect for fundamental rights was not sufficient to “ensure against the risk of ill treatment.”

Italy cannot rely on its bilateral agreement to evade its responsibilities. The situation was “well known and easy to verify.” The Italian authorities knew or should have known what the applicants, as irregular migrants, would have been exposed to.

Risk of return to country of origin

It is the responsibility of the State returning the migrant (Italy) to ensure that the intermediate State (Libya) offers “sufficient guarantees” that the migrants won’t be returned to their country of origin (Somalia) without an assessment of the risks. It was emphasised that when, as in this case, the intermediate State is not a signatory to Convention the “obligation is all the more important.”

According to the UNHCR and Human Rights Watch people forcibly repatriated to Eritrea face being tortured and detained in inhuman conditions merely because they left the country irregularly. In the case of Sulfi and Elmi the court noted the levels of Mogadishu. In this case it noted that Libya had not ratified the Geneva Convention on Refugee Status.

It was a violation of Article 3 to return the applicants to Libya because of the risk of arbitrary repatriation.

Article 4, Protocol 4

This article states, “collective expulsion of aliens is prohibited.” The case of Henning Becker v Denmark (no. 7011/75 decision of 3rd October 1975) defined “collective expulsion” as,

any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien in the group.

This was the first case where the court had found that Article 4 of Protocol 4 applied to a case involving a removal carried out outside national territory. It had to take account of the internal consistency and harmony of the provisions of the Convention.

In response to the Italian government’s contention that the applicants were not on Italian territory at the time of the transfer, and so it was not an expulsion, the court cited Article 1, Protocol no. 7, which  “explicitly refers to the notion of territory regarding procedural safeguards relating to the expulsion of aliens lawfully resident in the territory of a State. In the Court’s view, that wording cannot be ignored.”

The purpose of the article is to prevent the expulsion of migrants without examining their personal circumstances. With migration increasingly occurring via the sea. The court was not prepared to draw a conclusion that migrants at sea could get part way there and be able to be turned around, without consideration of their personal circumstances. That would not be possible for migrants travelling by land.

This guest post is by Henry Oliver who writes for the Mulberry Finch Blog

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