Case-Law Update[1]
Grand Chamber
Khlaifia and Others v. Italy (no. 16483/12)
Judgment delivered 15 December 2016
Article 3, Article 5, Article 4 of Protocol No. 4 and Article 13: considered against the background of the 2011 migration crisis and the consequent challenges confronting the receiving State
The case concerns the arrival of the applicants, three Tunisian economic migrants, on the island of Lampedusa, their initial placement in a reception centre (“CSPA”) and subsequent confinement on board two ships moored in Palermo harbour, followed by their removal to Tunisia in accordance with a simplified procedure under an agreement between Italy and Tunisia of April 2011. The applicants complained under Articles 3, 5 and 13 of the Convention and Article 4 of Protocol No. 4.
The Chamber found that there had been a violation of Article 5 §§ 1, 2 and 4; as well as of Article 3 (conditions in the CSPA) and Article 4 of Protocol No. 4, both alone and in conjunction with Article 13 of the Convention. No violation was found as regards the remaining complaints. Further to the referral of the judgment in February 2016, the Grand Chamber found a violation of Article 5 §§ 1, 2 and 4 and of Article 13 in conjunction with Article 3, and no violation of the other Articles invoked.
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The judgment explores in some detail the Convention rights of immigrants against the background of the migration and humanitarian crisis that unfolded in 2011, when events related to the “Arab Spring” led to a mass influx of immigrants into certain States (here the island of Lampedusa) leading to significant pressures on the receiving State. The following points are, in particular, worth noting.
1. As regards Article 3 of the Convention:
– The judgment provides a comprehensive overview of the case-law under Article 3 relative to the treatment of migrants (including conditions of their detention and, in particular, overcrowding).
– In response to the Article 3 complaint, the Government argued that due account should be taken of the exceptional humanitarian emergency. On the one hand, the Grand Chamber recalled the M.S.S. v. Belgium and Greece judgment where the Court confirmed that the absolute character of Article 3 meant that the significant migration challenges at issue could not absolve a State of its obligations under Article 3 and should not therefore be taken into account (M.S.S., §§ 223-224). On the other hand, the Grand Chamber went on to affirm in the present case the following:
“While the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time.”
2. As regards Article 4 of Protocol No. 4 to the Convention:
– The Court’s examination of this complaint is informed by a useful review of its case-law on Article 4 Protocol No. 4 (notably, Čonka v. Belgium; Hirsi Jamaa and Others v. Italy [GC], Georgia v. Russia (I)[GC]; and Sharifi and Others v. Italy and Greece) which case-law requires a sufficiently individualised examination of the particular case of each individual alien.
– The Grand Chamber addresses, in this context also, the impact of the migration crisis. It recalled that problems with the management of migratory flows or with the reception of asylum-seekers could not justify recourse to practices which were not compatible with the Convention or the Protocols thereto (citing Hirsi Jamaa and Others, § 179). The Grand Chamber went on, nevertheless, to confirm that it “has taken note of the ‘new challenges’ facing European States in terms of immigration control as a result of the economic crisis, recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East, and the fact that migratory flows are increasingly arriving by sea”.
– The basis upon which the Grand Chamber concluded as to no violation of Article 4 of Protocol No. 4 is also novel, focusing as it does on the individual review which could have taken place. In particular, the Grand Chamber pointed out that Article 4 of Protocol No. 4 did not guarantee the right to an individual interview in all circumstances: 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. Since the applicants had undergone identification on two occasions; since their nationality had been established; and, most importantly, since they had at all times had a genuine and effective possibility of submitting arguments against their expulsion had they wished to do so, the Grand Chamber considered that their expulsion (which was virtually simultaneous) could not be described as a collective one.
3. As regards Article 13 in conjunction with Article 4 of Protocol No. 4 to the Convention:
It is also important to note that the Grand Chamber has clarified when Article 13 requires a suspensive remedy to challenge an expulsion as a collective one.
In particular and clarifying the case of De Souza Ribeiro where this question was addressed in 2012 (De Souza Ribeiro, §§ 82-83), the Grand Chamber confirmed that, when an applicant alleges that an expulsion procedure was “collective” in nature but does not claim at the same time that it had exposed him or her to a risk of irreversible harm in the form of a violation of Articles 2 or 3 of the Convention, then the Convention does not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but merely requires that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum. The lack of suspensive effect, without therefore a claim of a risk of treatment contrary to Articles 2/3, was found not in itself to constitute a violation of Article 13 of the Convention.
[1] Drafted by the Directorate of the Jurisconsult. The Update does not bind the Court.
