ECtHR, 19 October 2023, A.B. v. Italy, A.S. v. Italy, M.A. v. Italy, Appl. Nos. 13755/18, 20860/20, 13110/18

Hotspots – Inhuman and degrading treatment – Unlawful detention – Articles 3, 5 ECHR.

Once again, the ECtHR found in three cases against Italy that the living conditions in the hotspot of Lampedusa constitute inhuman and degrading treatment prohibited by Article 3 ECHR. The Court also reaffirmed that the detention of migrants in the hotspot is unlawful under Article 5 ECHR as migrants are deprived of their liberty without a clear and accessible legal basis and in the absence of a reasoned measure ordering their detention. A clear and precise legal framework surrounding the hotspot approach is thus, once again, emphasized in order to guarantee the protection of human rights.

Eugénie Delval

A. Facts and Judgments

1. Facts

The three applicants are nationals of Tunisia who irregularly reached the Italian coast of Lampedusa aboard makeshift vessels for international protection purposes. They were transferred to the “Early Reception and Aid Centre” (Centro di Soccorso e Prima Accoglienza), on the Italian island of Lampedusa, identified as one of the Italian hotspots. In the case of A.B., the applicant reached Italy in October 2017. He was then issued with a refusal-of-entry order and was eventually forcibly removed to Tunisia. A few months later, he again reached the coast of Lampedusa abroad a makeshift vessel and was again transferred to the Lampedusa hotspot where he expressed his intention to apply for international protection. The applicant however stated that it had not been possible to fill in an official application form. In the course of his two stays, the applicant remained in the Lampedusa hotspot for 22 days and 17 days, during which it was allegedly impossible to interact with any authority. In the case of M.A., the applicant reached the Italian coast in January 2018 and submitted an asylum request on the day of his arrival to the Lampedusa hotspot. His request was however rejected as manifestly ill-founded. After a fire broke out at the hotspot, the applicant was transferred to a reception facility in Turin. He was then transferred back to the Lampedusa hotspot and remained there for more than two months. In the case of A.S., the applicant reached Italy in October 2018 and expressed his wish to file an asylum application 12 days after his arrival in the Lampedusa hotspot. He was consequently transferred to a reception center and filed an asylum request there. His application was however rejected as manifestly ill-founded and he was served with an expulsion order. The applicant challenged the expulsion order which was ultimately revoked on procedural grounds.

In the three cases, the applicants complained of the poor material conditions of their stay in the hotspot of Lampedusa. Relying on Article 3 of the European Convention on Human Rights (“ECHR”), they pointed out that the center was overcrowded, that they were housed in poor hygiene conditions and that they had a limited access to hot and drinking water. Furthermore, the applicants claimed a violation of Article 5 ECHR. They complained that they had been deprived of their liberty during their stay in the hotspot in the absence of any clear and accessible legal basis and that it had therefore been impossible to challenge the lawfulness of their deprivation of liberty.

2. Judgments of the European Court of Human Rights

On 19 October 2023, the European Court of Human Rights (“ECtHR”) issued its judgments in the three cases.

First, the Court found that the applicants were subjected to inhuman and degrading treatment during their stay in the Lampedusa hotspot, in violation of Article 3 ECHR. The Court in particular referred to the 2016-17 report of the National Guarantor of the rights of people detained or deprived of their liberty and the 2017 report on Identification and Expulsion Centers in Italy of the Senate of the Republic. These stated that the general conditions in the hotspot were rundown and dirty and pointed out the lack of services and space, with regard in particular to beds as the applicants had to sleep on mattresses outside the center, as well as the general poor hygiene and inadequacy of the center (A.B., § 27) The Court also referred to the 2020 report of the National Guarantor of the rights of people detained or deprived of their liberty attesting in addition that in 2019 in the Lampedusa hotspot there had only been two bathrooms to be shared by 40 people, and the rooms had been either too cold or too hot (A.B., § 27; A.S., § 20; M.A., § 18). Also, the Court found that while the center was closed as from 13 March 2018 on account of a fire which had rendered the center unsuitable for living, the applicant in M.A. nonetheless had to remain in the hotspot during that time (M.A., § 17).

Second, the ECtHR concluded in the three cases that there had been a violation of Article 5 ECHR. The Court noted that in the case of M.A., the applicant remained there for more than two months without a clear and accessible legal basis and in the absence of a reasoned measure ordering his detention (§ 23) In the case of A.S., the Court noted that the applicant had remained in the hotspot for 18 days without a clear and accessible legal basis for that placement and in the absence of any order giving reasons for his detention (§ 26). Likewise, in the case of A.B., the Court stated that the applicant remained in the hotspot during two periods, one of 22 days and the other of 17 days, without a clear and accessible legal basis and in the absence of a reasoned measure ordering his detention (§ 32). In view of the lack of a clear and accessible legal basis for the detention, the Court failed to see how the authorities could have informed the applicants of legal reasons for their deprivation of liberty or provided them with sufficient information to enable them to challenge the grounds for their de facto detention before a court (M.A., § 24, A.S., § 27; A.B., § 33). The Court therefore reached the conclusion that the applicants were arbitrarily deprived of their liberty, in breach of the first limb of Article 5(1)(f) ECHR which reads as follows:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […]

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

B. Discussion

1. The “Hotspot Approach” in the European Union

The hotspot approach was introduced by the European Commission in the European Agenda on Migration in April 2015, at the height of the “migration crisis,” as a means of providing frontline Member States faced with the arrival of large numbers of migrants with emergency assistance. The hotspot approach is thus presented as a key element in the EU’s support for Member States on the external borders of the EU. Hotspots are facilities established for initial reception, identification, registration and fingerprinting of asylum seekers and migrants arriving in the EU by sea, and thereby serve to channel new arrivals into procedures such as international protection or return. The hotspot approach was also introduced to contribute to the implementation of the temporary emergency relocation mechanisms that were proposed by the Commission and adopted by the Council of the EU in September 2015: people in clear need of international protection would be identified in frontline EU Member States for relocation to other EU Member States where their asylum application would be processed. Hotspots imply coordination of European aid in areas under high migratory pressure, where the European Union Agency for Asylum, the European Border and Coast Guard Agency, Europol and Eurojust work on the ground with the authorities of frontline EU Member States to help them fulfill their obligations under EU law.

Italy and Greece are the first two EU Member States where the hotspot approach is currently being implemented. In Greece, five hotspots were established in reception and identification centers: on Lesvos, Chios, Samos, Leros and Kos. In Italy, there are currently four active hotspots: in Lampedusa, Messina, Pozzallo and Taranto. Considering the commented judgments, the following developments focus primarily on the situation in the Italian hotspots. In particular the inhuman and degrading treatment (2) as well as the de facto unlawful detention (3) to which the migrants are subjected will be analyzed.

2. The Poor Living Conditions in Italian Hotspots: The Case of Lampedusa

Very quickly, the situation in the hotspots in Italy, including in Lampedusa, was met with fierce criticism by national and international human rights bodies and NGOs. For example, Amnesty International and the UN Committee against Torture reported an excessive use of force by police during fingerprinting of migrants. Cases of collective expulsions have also been reported. In general, Lampedusa has been known for many years for the inhuman living conditions in its hotspot center which is completely overcrowded (see for example here and here). Consequently, many people have to sleep on dirty mattresses outside the premises. The hotspot is repeatedly denounced as displaying inadequate hygienic and sanitary conditions, as lacking the necessities to guarantee the basic well-being of people, and as presenting systematic deficiencies in the provision of medical care (see for instance here, here, here and here). Notably, mid-March 2018, the hotspot was temporarily closed, following a wave of criticism at their operation and conditions. The National Guarantor of the rights of people detained or deprived of their liberty (together with many others, for instance here and here) has repeatedly reported that migrants are not allowed to leave the hotspot of Lampedusa even after they have been identified and identification photographs and fingerprints have been taken (see notably here and here). Migrants, including the most vulnerable ones, are de facto detained without any judicial assessment and without the possibility of appealing to a judicial authority. What was initially designed as a first reception facility for a very limited period of time eventually turned into a de facto detention center, not adequate at all in view of people’s length of stay (a few weeks or months).

Considering those dire conditions, it comes as no surprise that the ECtHR ruled that Italy had violated Article 3 ECHR for subjecting migrants to inhuman and degrading treatment during their stay in the Lampedusa hotspot, not only in the three commented judgments, but also in the similar case of J.A. and Others v. Italy decided a few months earlier. The latter concerned four Tunisian nationals who attempted to travel from Tunisia to Italy in October 2017 by makeshift boat. When their boat ran into trouble, they were rescued by an Italian ship, which took them to Lampedusa. They remained in the hotspot of Lampedusa for ten days and were prevented from leaving. Along with other persons, the four were then taken to the airport where they were asked to sign documents that they allegedly did not understand, but which they later learned were refusal-of-entry orders, preventing them from returning to Italy. They were then forcibly removed to Tunisia (§§ 2–11). It is without any difficulty that the ECtHR decided that the applicants were subjected to inhuman and degrading treatment during their stay in the hotspot. The Court recalled in particular the conditions of hygiene, the lack of space, the features of accommodation, the lack of services, and the lack of adequacy of the center, referring to abundant international and national sources (§§ 60–65). The Court reached the same conclusion in the three commented judgments. The judgment of the Court in the case of A.S. v. Italy in particular shows that the situation in late 2019 remained similar.

In September 2023, nearly 7000 migrants arrived on the island of Lampedusa in 48 hours. The hotspot however only has a capacity of around 400 persons and the staff was completely overwhelmed. The local authorities were unable to provide food, water and shelter to everyone. This situation led to despair and vivid tensions. The President of the European Commission, Ursula von der Leyen, and the Commission responsible for migration, Ylva Johansson, presented a 10-point plan to reduce irregular migration and provide immediate EU assistance to the Italian authorities. This plan includes supporting the transfer of people out of Lampedusa, including to other EU Member States using the voluntary solidarity mechanism. Considering those circumstances and the strong reluctance of certain EU Member States in taking migrants from Lampedusa (for example France, Poland, and Belgium), the living and housing conditions in the hotspot of Lampedusa are certainly not set to improve anytime soon and inhuman and degrading conditions will persist.

3. Vague Legal Framework Surrounding Migrants’ Detention in the Hotspot of Lampedusa

As mentioned, there is no overarching EU legal framework for the hotspot approach (albeit regulated by international and regional human rights law). Contrary to the situation in Greece, no specific legislation was initially adopted in Italy to monitor the functioning of the hotspots. In its Grand Chamber judgment Khlaifia and Others v. Italy, the ECtHR reaffirmed that despite the particularities of migrants’ detention centers, there can be no dilution of the fundamental safeguards around the prohibition of arbitrariness. In that case, the Court recalled and specified the general principles applying to the detention of migrants in reception centers. The 2011 case of Khlaifia concerned three Tunisian nationals who were intercepted at sea by Italian coast guards and transferred to the early reception center (CSPA) on the island of Lampedusa. After a violent revolt broke out in the center, leading to a fire that destroyed parts of it, the applicants were transferred to Palermo. The Italian authorities placed them in boats moored in the harbor, together with other migrants, where they stayed for several days. They were afterward deported to Tunisia. Among others, the ECtHR found a violation of Article 5 ECHR as for the detention in the Lampedusa center and aboard the ships. First, the Court found that Article 5 was indeed applicable to the case since, having regard to the restrictions imposed on the applicants by the authorities, in the center and on the ships, the applicants were genuinely deprived of their liberty. This regardless of the classification of the measure under domestic law (§§ 65–73). Next, the Court recalled that the deprivation of liberty must be “lawful.” This means that a “procedure prescribed by law” must have been followed, with respect to both substantive and procedural rules. Article 5(1) ECHR therefore requires that any arrest or detention has a legal basis in domestic law (§ 91). The Court stressed that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied: it is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (§ 92). In that case, the ECtHR found that the applicants’ detention had no legal basis in Italian law and that, consequently, the Italian legal system did not provide them with a remedy whereby they could challenge the lawfulness of their detention. Article 5 ECHR had thus been violated (§§ 97–108).

It is precisely this requirement of a clear and accessible legal basis that still raises questions in the context of the detention of migrants in the hotspot of Lampedusa. In response to the European Agenda on Migration issued by the European Commission in 2015, the Italian Ministry of Interior issued a Roadmap on 28 September 2015, in which six hotspots were planned in Lampedusa, Trapani, Pozzallo, Taranto and Augusta, for pre-identification and registration purposes. No specific legislation or amendment was adopted initially. Alternatively, the Italian Interior Ministry, in cooperation with the European Commission, adopted in February 2016 standard operating procedures that apply in hotspot and non-hotspot areas where disembarkation takes place. Those standard procedures are not legislative acts. In 2017, the Consolidated Act on Immigration (TUI) was amended by Decree Law 13/2017, implemented by Law 46/2017. Following this amendment, Article 10ter TUI provided that foreigners apprehended for irregular crossing of the internal or external border or arrived in Italy after rescue at sea are directed to appropriate “crisis centers” and at first reception centers. There, they will be identified, registered and informed about the asylum procedure, the relocation program and voluntary return. Here, hotspots were thus specifically provided for in a legal text. Once the identification is complete, migrants who have expressed their willingness to apply for asylum in Italy are transferred to first-level reception facilities, where they have to wait for the decision on their application for international protection. Article 10ter(3) TUI also provides, following this amendment, that repeated refusal to undergo fingerprinting at hotspots or on the national territory constitutes a criterion indicating a risk of absconding which may justify detention.

These legal amendments however did not change the arbitrariness of migrants’ general detention in Lampedusa. In the above-mentioned case of J.A. and Others v. Italy, the Court focused on the applicants’ claim that they had been arbitrarily deprived of their liberty. As said, the applicants were four Tunisian nationals who departed from their country of origin in October 2017 and, after their rescue at sea, were brought to the hotspot in Lampedusa. After undergoing identification procedures, they stayed at the center for ten days. The Court assessed whether the detention of the applicants was to be considered “lawful” in order to prevent their effecting an unauthorized entry into the country, in accordance with Article 5(1)(f) ECHR. The Court noted that the hotspot is a “closed area with bars, gates, and metal fences that migrants are not allowed to leave, even once they have been identified” (§ 92). However, the Court found that the Italian regulatory framework, in particular the newly adopted Decree Law 13/2017, does not provide clear instructions concerning the detention of migrants in these facilities (§ 90). The Court explained that “at the moment of migrants’ attempt to be admitted into the territory of a Contracting Party, a limitation of their freedom of movement in a hotspot may be justified—for a strictly necessary, limited period of time—for the purpose of identification, registration and interviewing with a view, once their status has been clarified, to their possible transfer to other facilities” (§ 93, emphasis added). Yet, in the circumstances of the present case, the impossibility for the migrants to leave the closed area of the hotspot did not fall under any of these situations, and the maximum duration of their stay in the hotspot was not defined by law or regulation (§ 94). In respect of the lack of a clear and accessible legal basis for detention, the Court thus 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 or enabled them to challenge the grounds for their de facto detention before a court (§ 98). Thus, the Court confirmed that there had been a violation of Article 5 ECHR.

In its judgment, the Court added that “the nature and function of hotspots under the domestic law and EU regulatory framework may have changed considerably over time […] thus possibly not excluding deprivation of liberty” (§ 95). Be that as it may, the Court noted that at the time of the facts, the Italian regulatory framework did not allow for the use of the Lampedusa hotspot as a detention center for aliens. According to the ECtHR, “the organisation of the hotspots would thus 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” (§ 96). After 2017, some amendments were brought to the Italian legal framework. The Decree Law 113/2018 converted into Law 132/2018 amended Article 6(3bis) of the Italian Reception Decree. The new Article 6(3bis) provides that asylum seekers may be detained up to 30 days in “specific premises” in hotspots or first reception centers for the purpose of establishing their identity or nationality. If the determination or verification of identity or nationality is not possible in those premises, they can be transferred to a pre-removal detention center. Although the new Article 6(3bis) of the Reception Decree foresees the possibility of detention for identification purposes in specific places, such places have still not been identified by law. As those dedicated premises have never been identified, detention for identification purposes occurs de facto in hotspots. Indeed, the commented judgment of A.S. v. Italy shows that this newly amended legal framework still does not constitute a clear and accessible legal basis for the detention of migrants in the hotspot of Lampedusa. Decree Law 113/2018 was indeed adopted in September 2018 and the applicant in A.S. remained in the hotspot from 8 to 25 October 2019 without any possibility to leave. As already said, the ECtHR found the detention to be unlawful.

In 2020, the Decree Law 130/2020, converted into Law 173/2020, confirmed the aforementioned amendment made to Article 6(3bis) of the Reception Decree and therefore leaves a deficient regulatory framework in place: hotspots as such are not qualified as “detention facilities.” While Article 10ter TUI constitutes a specific piece of legislation on hotspots, it does not explicitly mention detention in those centers. Should one even consider that the identification purpose justifying potential detention is provided for in Article 6(3bis) of the Reception Decree, the other grounds allowing for detention of asylum seekers in hotspots (for instance, after identification has duly been carried out) remain unclear and are not clearly defined by law, nor are the exact maximum duration of detention, the possibility to extend it and the decision-making process leading to detention, as well as the modes of detention. In 2023, the Italian legislator introduced Decree Law 20/2023, converted into Law 50/2023. The Decree Law 20/2023 introduced a new hypothesis for the detention of asylum seekers in hotspots, through the new Article 6bis of the Reception Decree. Applicants can be detained within a hotspot during the border procedure for the sole purpose of ascertaining their right to access Italian territory. Detention may take place where the applicant has not presented a valid passport or other equivalent document, or does not provide for suitable financial guarantees. Finally, the last step of tendency towards a proliferation of detention was reached late September 2023 when the Italian government passed tougher measures to deter migrant arrivals. Among others, a ministerial decree of 14 September 2023 allows asylum seekers from safe third countries to be transferred and detained in dedicated closed centers if they cannot provide a financial guarantee of EUR 4,938.00.[1]

It remains to be seen whether this newly adopted framework—and in particular Decree Law 20/2023 converted into Law 50/2023—satisfies the principle of legal certainty under Article 5 ECHR. It suffices to recall that deprivation of liberty must follow a procedure prescribed by law under which clear substantive and procedural rules are defined. Sufficient reasons and information must be provided to the migrants deprived of their liberty to enable them to challenge the grounds of their detention before a judge. It is highly doubtful that the Italian legal framework satisfies these requirements. In any case, deprivation of liberty within the hotspot of Lampedusa must, in addition to the ECHR, comply with EU law. In particular, it follows from Article 8 of the EU Reception Conditions Directive that only when it “proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant” and this only “if other less coercive alternative measures cannot be applied effectively”. Article 8 of the Directive lays out six grounds that may justify the detention of asylum applicants: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based, which could not be obtained in the absence of detention, in particular when there is a risk that the applicant might abscond; (c) in order to decide on the applicant’s right to enter the territory; (d) in the framework of the return procedure; (e) when protection of national security or public order so requires; (f) in the context of determining the Member State responsible for an asylum application under the Dublin Regulation. Hence, deprivation of liberty of asylum seekers within the hotspot of Lampedusa must remain a measure of last resort and a person shall not be detained for the sole reason that he or she is an applicant for international protection (Article 8(1) of the EU Reception Conditions Directive).

C. Conclusion

In the cases of M.A., A.S., and A.B. v. Italy, the ECtHR found that Italy had violated Articles 3 and 5 ECHR with respect to the applicants’ stay in the hotspot of Lampedusa. It concluded that the applicants had been subjected to inhuman and degrading treatment prohibited under Article 3 ECHR, considering the material conditions of accommodation. Also, the Court concluded that the applicants had been deprived of their liberty without a clear and accessible legal basis and in the absence of a reasoned measure ordering their detention. The Italian authorities could therefore not inform the applicants of the legal reasons for their deprivation of liberty or provide them with sufficient information to enable them to challenge the grounds for their de facto detention before a court, thereby violating Article 5(1)(f) of the Convention. In those three judgments, the ECtHR reiterated what it had already found in its earlier judgment in the case of J.A. and Others v. Italy, relating to the conditions and lawfulness of the detention of migrants in the Lampedusa hotspot.

While the present commentary focused on the situation prevailing in the hotspot of Lampedusa, the same conclusions may be drawn with respect to the other Italian hotspots as well as to the hotspots in Greece. For example, in April 2023, the ECtHR issued its judgment in the case of A.D. v. Greece, in which it condemned the living conditions in some of the hotspots on the Greek Aegean Islands. This background and the judgments of the ECtHR—which will most probably not be the only ones—demonstrate that a clear and precise legal framework surrounding the implementation of the EU hotspot approach is needed, particularly with respect to the detention of migrants in these facilities. Currently, and among others, the monitoring of human rights abuses and violations in the hotspots is flawed with gaps. A stronger legal and regulatory framework is necessary to ensure proper supervision and monitoring, not only from national systems but also perhaps from the EU.

D. Suggested Reading

To read the cases: ECtHR, 19 October 2023, A.B. v. Italy, A.S. v. Italy, M.A. v. Italy, Appl. Nos. 13755/18, 20860/20 and 13110/18.

Case Law:

• ECtHR, 15 December 2016, Khlaifia and Others v. Italy, Appl. No. 16483/12.
• ECtHR, 30 March 2023, J.A. and Others v. Italy, Appl. No. 21329/18.

Doctrine:

• Lys, M., “La Cour européenne des droits de l’homme condamne la détention irrégulière de migrants tunisiens sur l’île de Lampedusa dans des conditions contraires à l’article 3 de la C.E.D.H. et avant une expulsion collective illégale”, Newsletter EDEM, September 2015.
• Rocca, M., “J.A. and Others v. Italy – Is the European Court of Human Rights turning its focus to maritime migrants?”, EJIL:Talk!, 17 April 2023.
• Tsourdi, L., “Refining the prohibition of collective expulsion in situation of mass arrivals: a balance well struck?”, Newsletter EDEM, January 2017.
• Venturi, D., “The Grand Chamber’s Ruling in Khlaifia and Others v. Italy: One Step Forward, One Step Back?”, Strasbourg Observers, 10 January 2017.

 

To cite this contribution: E. Delval, “The hotspot approach in Lampedusa under the spotlight of the ECHR: unlawful detention as well as inhuman and degrading treatment”, Louvain Migration Case Law Commentaries, November 2023.