Refining the prohibition of collective expulsion in situation of mass arrivals: a balance well struck?
The December 2016 Grand Chamber judgment partly reverses, and partly upholds the findings of the earlier September 2015 Second Section judgment. It toes the line in what concerns guarantees against arbitrary deprivation of liberty. However, its position differs in relation to violations of Article 3 and of Article 4, Protocol 4 ECHR. While not undermining the absolute nature of the prohibition of inhuman or degrading treatment, the Grand Chamber nuances its position on the threshold of minimum severity required to find a violation of that principle in situations of deprivation of liberty. It also refines the guarantees around the prohibition of collective expulsion in a manner which affords greater leeway to national authorities dealing with the situation of mass arrivals.
ECHR arts. 3, 5, 13 and art. 4 of prot. 4 – Directive 2008/115/EC – migration management measures in the context of mass arrivals – guarantees around collective expulsion – prohibition of inhuman and degrading treatment for migrants deprived of their liberty.
A. The Grand Chamber judgment
The facts of the case relate to the increased arrivals to the coasts of Italy of third country national migrants and asylum seekers, resulting from the Arab Spring in 2011. The applicants, three Tunisian nationals, were intercepted at sea (on 16 and 17 September respectively) by the Italian coastguard. They were first transferred to an Early Reception and Aid Centre (CSPA) in Lampedusa. Italian authorities proceeded with their identification and allegedly filled in individual ‘information sheets’ for each applicant-a fact disputed by them. On 20 September, a violent revolt broke out, leading to a fire that destroyed parts of the centre. The respondent government argues that the ‘information sheets’ relating to their identification were burnt on that occasion. After spending one night on the streets, the applicants were apprehended and flown to Palermo. The authorities placed them in boats moored in the harbour where they remained until the 27 September (the second and third applicants) and the 29 September (the first applicant). They were then led to Palermo airport where, before being flown back to Tunisia, they had an opportunity to meet with the Tunisian Consul. The applicants dispute ever having received any form of documentation. However, the respondent government produced three virtually identical refusal-of-entry orders, drafted in Italian and translated in Arabic. These orders were accompanied by a record of notification that the applicants had not signed. Once back in Tunis the applicants were released.
Findings on Article 5 of the Convention
The Grand Chamber found Article 5 to be applicable. The conditions to which the applicants were subjected in the CSPA centre and later the boats, which included inability to communicate with the outside world and prolonged confinement, were considered to reach the threshold of deprivation of liberty. The Grand Chamber made this finding regardless of the classification of the measures under national law. Next, the Grand Chamber found that the deprivation of liberty fell under Article 5(1)(f) of the Convention and notably that it sought to prevent them from effecting an unauthorised entry. However, it noted that there was no basis for this deprivation under national law. The legal conditions for placing the applicants in a pre-removal centre were not fulfilled, and national law did not provide for deprivation of liberty in cases of temporary stay in Italy on public assistance grounds, although it allowed for them to be subject to a refusal of entry and to removal procedures. The text of the bilateral agreement with Tunisia was not made public, and therefore it remained inaccessible to the applicants. Therefore, it could also not have constituted an adequate legal basis. Furthermore, the Grand Chamber held that the applicants were unable to enjoy the fundamental safeguards of habeas corpus, i.e. to challenge their deprivation of liberty. As a result, it found detention to be arbitrary and not responding to the requirements of the Convention under Article 5(1) ECHR. Apart from the finding of arbitrariness, the Grand Chamber held that the applicants had only been informed as to the reasons of their deprivation of liberty very belatedly, thus violating also Article 5(2) ECHR. Consequently, it found that this sufficed to conclude that the Italian legal system did not provide them with a remedy whereby they could challenge the lawfulness of their detention thus violating also Article 5(4) ECHR.
Findings on Article 3 of the Convention
The Grand Chamber examined separately the conditions in the CSPA centre and on the ships in order to ascertain whether they reach the threshold of inhuman or degrading treatment. It found that, due to the sudden increase of arrivals, it was not unreasonable to transfer at an initial stage the applicants to the CSPA centre in Lampedusa. The conditions in the CSPA centre did not reach that threshold according to the Grand Chamber. It placed weight, on the one hand, to the fact that, while the applicants were deprived of their liberty, they could move freely within the premises of the facility. This was considered by the Court to alleviate in part the constraints caused by overcrowding. On the other hand, it considered that the applicants, who were not asylum seekers, did not share the specific vulnerability inherent in that status. Moreover, they did not belong to another vulnerable category, or complain of any lack of medical care in the centre. Next, the Grand Chamber held that it could not be established either that conditions on the boats reached the requisite level of severity. There were no objective reports to corroborate their allegations, and the government adduced a judicial decision by the Palermo preliminary investigation judge contradicting their account.
Findings on Article 4, Protocol 4 of the Convention
The Grand Chamber referred to its well-established case-law according to which: ‘[t]he purpose of Article 4 of Protocol No. 4 is to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority’. It also went on to note that: ‘[…] the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis’.
In the case at hand, the Grand Chamber found that the applicants underwent identification on two occasions: immediately after their arrival at CSPA and before they boarded the planes for Tunis. The quality of this initial identification, i.e. whether it constituted a genuine individual interview, is disputed between the parties. The Court regarded it plausible that the ‘information sheets’ were destroyed during the fire at the initial centre, and noted the presence of several social workers, cultural mediators and interpreters at the facility in question. Importantly, the Grand Chamber held that Article 4 of Protocol 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision could also be satisfied where the persons had a genuine and effective possibility of submitting arguments against their expulsion. The Grand Chamber opined that the applicants had this opportunity on several occasions: in the initial centre; on board the ships; and before the Tunisian Consul who met with them shortly before they boarded their plane to Tunis. Finally, the Grand Chamber found that: ‘the relatively simple and standardised nature of the refusal-of-entry orders could be explained by the fact that the applicants did not have any valid travel documents and had not alleged either that they feared ill-treatment in the event of their return, or that there were any other legal impediments to their expulsion’.
Findings on Article 13, in relation to Articles 3 and of Article 4, Protocol 4 of the Convention
Given that no remedies existed for the applicants to complain about the conditions in which they were held in the CSPA or on board the ships the Grand Chamber found a violation of Article 13 taken together with Article 3 of the Convention. Regarding a remedy to challenge the collective nature of their expulsion, the Grand Chamber found that there was one available at national level, although it was not suspensive. It went on to examine whether the lack of suspensive effect, in itself, constituted a violation of Article 13 taken together with Article 4, Protocol 4 of the Convention. It found that not to be the case. In particular, it concluded that where an applicant does not allege that she faces violations of Article 2 (right to life), or 3 (prohibition of torture or inhuman or degrading treatment) upon their return, the Convention does not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but merely requires that they have an effective possibility of challenging the expulsion decision.
The facts relating to the European Court of Human Rights (ECtHR) Grand Chamber’s judgment are as relevant today as they were in 2011. Member States continue to face increased arrivals of persons who have international protection needs, alongside those who do not present such needs. The European Union has rolled out the ‘hotspot approach’ which concerns inter-agency collaboration in border areas, where deployed national experts under the coordination of a specific agency operationally assist national administrations. Among their tasks are: registration, identification, and information-provision to those arriving, tasks which are intrinsically linked with the legal issues at play in this judgment.
Deprivation of liberty in the context of mass arrivals: safeguarding from arbitrariness while nuancing the threshold for a finding of inhuman or degrading treatment
In what concerns deprivation of liberty, the Grand Chamber reaffirmed that despite the particularities of the context, there can be no dilution of the fundamental safeguards around the prohibition of arbitrariness. Moving beyond the characterisation of the measures under national law, or the national understanding as to the nature of the centres they were held, it examined the actual material conditions the applicants were subject to finding them to amount to deprivation of liberty. It scrutinised the national law for a legal basis on which this deprivation of liberty could be founded, and when it found that missing, it affirmed that undisclosed bilateral agreements between governments cannot be a substitute. This is particularly important in a context where the treatment of applications at the border is increasingly linked with generalised regimes of deprivation of liberty in view of achieving impending return. At the EU level, the recast asylum instruments also oppose mandatory detention. On this occasion, while the context of mass arrivals is acknowledged, the Grand Chamber explicitly states that it does not justify placement in a centre without a legal basis in national law and without legal supervision.
Where this context seems to influence heavily the pronouncements of the Grand Chamber is the issue of the minimum threshold of severity required to trigger the application of Article 3 ECHR. The Grand Chamber justifies the choice of the Italian authorities to direct the applicants to the centre in Lampedusa, a tiny island, due to the situation of emergency. One may help but wonder though whether emergency justifies directing large numbers of arriving migrants at a centre with limited capacity, where rapid overcrowding was all but predictable. The consequent finding that free circulation within a closed centre effectively alleviates overcrowding is somewhat surprising, given the physical and psychological strain this situation can induce on an individual. However, one additional factor was the short timeframe during which the applicants were held in these conditions (namely a few days). Finally, the Grand Chamber clearly distinguishes between the situation of those who have claimed asylum from other migrants, the applicants belonging to the latter category. This means that the findings would, in all probability, have been different were asylum seekers concerned instead, whose particular vulnerability the Grand Chamber repeatedly acknowledged. Finally, additional factors of vulnerability were not found present in what concerns the applicants. As Denise Venturi poignantly observes: ‘the Grand Chamber’s reasoning seems to give a hint on what vulnerability is not: being a healthy, young man, albeit with irregular status’.
Prohibition of collective expulsion in the context of mass arrivals: a refinement of guarantees which affords greater leeway to States
Where the judgment of the Grand Chamber markedly differs from that of the Second Section are the findings around the guarantees surrounding the prohibition of collective expulsion. The Grand Chamber found that this prohibition does not necessarily entail the right to an individual interview in all circumstances, as long as the applicant has been given a genuine and effective possibility of submitting arguments. The problem with this finding is that in practice, where an individual interview is not structurally embedded in the process, it will be extremely difficult to verify whether this ‘genuine and effective possibility’ has been realised or not. The right to an individual interview would have avoided situations of contradicting allegations between applicants and national authorities, the veracity of which has little chance of ever been proved. In addition, the Court has given quite some weight to the existence of the ‘information notes’ or ‘folgio notizie’ as they are known in Italian practice. This concept and the practice around it that still takes place today merits some elucidation.
Elisa Maimone, who conducted research on the ground for a large and well reputed Italian civil society organisation on refugee issues, CIR, provides more details on the operationalisation of this stage:
[each person is provided with the] so-called “foglio notizie” where it is required to fill in with his/her own personal details (name, date of birth and nationality) together with the reason for leaving the country of origin. The possible answers to this multiple choice question are “in Italy for work”, “to reach family”, “to escape poverty”, “for asylum” and “other”. Once the third-country national fills in the document with the help of an interpreter, the “foglio-notizie” is signed by the police official, the interpreters and by the person concerned. However, the latter does not receive any copy of the document and it seems that it has been improperly used as a filter to reduce asylum applications. Pre-identification represents a first differentiation based on the result of the “foglio-notizie” filled in shortly after disembarkation, when migrants and refugees are still shocked and disoriented. At this stage the only information they are provided is included in a leaflet produced by UNHCR and IOM in four languages (English, French, Arabic and Tigrinya) and distributed at the port or when they enter the centre.
A multitude of other sources document similar trends in Italy, such as return decisions being issued without a proper examination of the individual cases; chaotic and imprecise approaches to identification; lack of information provided to those disembarked; and limitation of access to an international protection procedure to certain nationalities.
While the situation is improving, it transpires that initial registration, on the basis of a standardized formula, before having the possibility to recover from an arduous sea journey and to receive legal information/advice does not seem to fulfil the criteria of a ‘genuine and effective possibility’ to bring forth reasons against return. The Grand Chamber judgment seems to be unduly influenced by the fact that the specific applicants were not in fact asylum seekers. However, this judgment could act as a template for protecting rights in the so-called migration crisis, and States at the external borders of the EU are facing mixed arrivals. The right to an individual interview, with the presence of legal advisors, and adequate translation, would have ensured that asylum seekers are properly identified and referred to the appropriate channels, while those not in need of international protection, such as the three applicants in question, are channelled to return processes. In this sense, the standardised nature of the final decisions, which is not in itself enough to characterise the expulsion as collective, would have been better grounded. Such standardised decisions would be backed up by the findings/records of an individualised interview, and not merely by yet another standardised form.
The Grand Chamber placed weight to the massive nature of the arrivals, stating that it would: ‘certainly be artificial to examine the facts of the case without considering the general context in which those facts arose’. This context is palpable in the reasoning of the Court. The Grand Chamber did not backtrack from the absolute nature of non-refoulement nor nuance the prohibition of arbitrary deprivation of liberty. However, it nuanced considerably the guarantees around detention conditions and the prohibition of collective expulsion. Its failure to demand a personalised interview as a structurally embedded part of the identification process, could lead to asylum seekers not been properly identified. The vaguer standard of a ‘genuine and effective possibility of submitting arguments’ will be difficult to operationalise, especially in a context of mass arrivals where reception and detention facilities function in overcapacity and initial identification is based in practice on standardised forms.
D. Pour aller plus loin
ECtHR, Čonka v. Belgium, 5 February 2002, app. n°51564/99
ECtHR, M.S.S. v. Belgium and Greece, 21 January 2011, app. n°30696/09
ECtHR, Hirsi Jamaa and others v. Italy, 23 February 2012, app. n° 27765/09
ECtHR, Sharifi and others v. Italy and Greece, 21 October 2014, app. n° 16643/09
ECtHR, Khlaifia and others v. Italy (GC), 1 September 2015, app. n°16483/12
Scholarly analysis and opinions
A.R. Gil, “Collective expulsions in times of migratory crisis: Comments on the Khlaifia case of the ECHR”, in EU Migration Law Blog , 11 February 2016.
E. Tsourdi, ‘Bottom-up Salvation? From Practical Cooperation Towards Joint Implementation Through the European Asylum Support Office’ (2016) 1(3) European Papers 997, 1015.
D. Venturi, “The Grand Chamber’s Ruling in Khlaifia and others v. Italy: One Step Forward, One Step Back?”, in Strasbourg Observers, 10 January 2017.
S. Zirulia and S. Peers, “A template for protecting human rights during the ‘refugee crisis’? Immigration detention and the expulsion of migrants in a recent ECtHR Grand Chamber ruling”, in EU Law Analysis, 5 January 2017.
Pour citer cette note : L. Tsourdi « Refining the prohibition of collective expulsion in situation of mass arrivals: a balance well struck? », Newsletter EDEM, janvier 2017.
 ECtHR, Khlaifia and others v Italy (GC), op. cit., §§ 97-101.
 Ibid., §§ 101-102.
 Ibid., §§ 180-182.
 Ibid., § 193.
 See ECtHR, M.S.S. v. Belgium and Greece, 21 January 2011, app. n°30696/09 on vulnerability, as well as analysis on the pronouncement of the Grand Chamber on this point at D. Venturi, “The Grand Chamber’s Ruling in Khlaifia and others v. Italy: One Step Forward, One Step Back?”, in Strasbourg Observers, 10 January 2017.
 ECtHR, Khlaifia and others v Italy (GC), op. cit., §194.
 Ibid., §§ 202-208.
 See for example, ECtHR, Hirsi Jamaa and others v. Italy, op.cit., § 239 and ECtHR, M.A. v. Cyprus, app. n° 41872/10.
 ECtHR, Khlaifia and others v Italy (GC), op. cit., § 248.
 Ibid., § 251.
 Ibid., § 270.
 Ibid., § 279.
 E. Tsourdi, ‘Bottom-up Salvation? From Practical Cooperation Towards Joint Implementation Through the European Asylum Support Office’ (2016) 1(3) European Papers 997, 1015. See also Communication COM(2015) 490 final of 23 September 2015 of the Commission, Annex II to the Communication on Managing the Refugees Crisis: Immediate Operational, Budgetary and Legal Measures under the European Agenda on Migration.
 See Directive 2013/32/EU on Common Procedures for Granting and Withdrawing International Protection (Recast), OJ L 180/60; Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L180/96.
 ECtHR, Khlaifia and others v Italy (GC), op. cit., § 106.
 D. Venturi, “The Grand Chamber’s Ruling in Khlaifia and others v. Italy: One Step Forward, One Step Back?”, op.cit.
 See E Maimone, ‘The EU ‘hotspot approach’ and the relocation procedures to the (Italian) test: implementation, shortcomings and critical remarks’ (2016) University of Pisa Observatory on European Migration Law Working Paper No.3, 12 <http://immigrazione.jus.unipi.it/pubblicazioni/working-papers/>.
 See ECRE, ‘Italy: a worrying trend is developing in the ‘hotspots’’ (ECRE, 20th November 2015) <http://www.ecre.org/italy-a-worrying-trend-is-developing-in-the-hotspots/>; Medici senza Frontiere, ‘Espulsioni a Pozzallo: "Aspettiamo un chiarimento dalle autorità competenti"’ (Medici senza Frontiere, 16 October 2015) <http://www.medicisenzafrontiere.it/notizie/news/espulsioni-pozzallo-aspettiamo-un-chiarimento-dalle-autorità-competenti>; Associazione per gli Studi Giuridici sull’Immigrazione (ASGI), ‘Hotspot : il Tavolo Nazionale Asilo chiede un incontro al Ministro dell’Interno’ (ASGI, 5th November 2015) <http://www.asgi.it/notizia/hotspot-il-tavolo-nazionale-asilo-chiede-incontrare-il-ministro-dellinterno/>; Human Rights Watch (HRW), Italy: Children Stuck in Unsafe Migrant Hotspot’ (HRW, 23 June 2016) <https://www.hrw.org/news/2016/06/23/italy-children-stuck-unsafe-migrant-hotspot>; Tavolo Nazionale Asilo, ‘Hotspot: Luoghi di Illegalita’ (Tavolo Nazionale Asilo, 1 March 2016) <http://www.cir-onlus.org/it/comunicazione/news-cir/51-ultime-news-2016/2001-tavolo-asilo-hotspot-luoghi-di-illegalita>; ASGI, ‘Il diritto negato: dalle stragi in mare agli hotspot’ (ASGI, January 2016) <http://goo.gl/D0oBll> and ECRE, ‘Admissibility, responsibility and safety in European asylum procedures’, 2016, 10 <http://www.ecre.org/wp-content/uploads/2016/09/ECRE-AIDA-Admissibility-responsibility-and-safety-in-European-asylum-procedures.pdf>.
 See S. Zirulia and S. Peers, “A template for protecting human rights during the ‘refugee crisis’? Immigration detention and the expulsion of migrants in a recent ECtHR Grand Chamber ruling ”, in EU Law Analysis, 5 January 2017 .
 ECtHR, Khlaifia and others v Italy (GC), op. cit., § 185.