In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
In an important judgment, the Grand Chamber of the European Court of Human Rights (ECHR) has rejected government claims that migrants can be confined in emergency accommodation without a clear legal basis. Khlaifia v. Italy, issued on December 16, affirms that state power to deny liberty to migrants depends upon precise, published laws authorizing that detention. The ruling shows that the asylum “hotspot” facilities that Italy operates as part of EU asylum policy are fundamentally illegal and require immediate reform. (The court also addressed the question of collective expulsion, which we covered in our Case Watch series here).
The Khlaifia case concerned a group of Tunisian migrants travelling by sea to Italy in 2011 who were intercepted by the Italian coastguard and taken to the small Italian island of Lampedusa. After being detained by the police for more than three days on Lampedusa, the group was flown to Palermo on Sicily, where they were forced onto boats moored in the harbor and held there for five to seven more days.
Three of the migrants complained about their treatment to the ECHR, arguing that they had been detained in violation of Article 5 of the European Convention on Human Rights, which states that “no one shall be deprived of his liberty save … in accordance with a procedure prescribed by law.” The men argued that the Italian police had deprived them of liberty for ten days, without any basis in Italian law, without giving them reasons for the detention, or access to a judge.
The Italian government did not dispute that the police controlled where the migrants stayed and prevented them from leaving the buildings or ships they were taken to. But the government argued that this was not a deprivation of liberty, because the Italian coastguard had rescued the migrants, and the Italian authorities were then required by law to establish their identity and remove them from Italy. The government could only point to Italian laws about refusal of admission, not laws authorizing detention, and instead claimed that the secret text of Italy’s agreement with Tunisia was enough. The Tunisians knew that they were on Italian territory, which the government argued was enough explanation to them of any detention. As for a remedy against detention, the government could only refer to the right to challenge removal.
The ECHR had little time for these arguments. The court recalled that the European Convention on Human Rights applies to every kind of person and to every kind of detention, including protective custody. States can choose whether or not to detain irregular migrants: their status alone is not a legal basis for detention, or for assuming the migrant knows why they have lost their liberty.
To detain the migrants lawfully, Italy was required to have published a law controlling how this was to be done, to have given each person notification of the reason for detention and an effective means of challenging the decision to detain. The court ruled that the Italian government had violated Article 5 ECHR.
Since the events that led to the Khlaifia ruling, Italy has continued to detain migrants without a basis in national law, including at Lampedusa and at three other locations designated “asylum hotspots.” In 2015, amid large numbers of people arriving irregularly, the EU pushed Greece and Italy to focus resources on a handful of designated facilities where arrivals could be identified and finger-printed, and some asylum procedures carried out. These hotspots also had substantial involvement of EU agencies and their staff.
However, these hotspots are not defined in EU legislation, nor under Italian law. This is different from the places where Italy detains migrants whose asylum cases have been rejected and who are awaiting deportation (known in Italian as Centri di Identificazione ed Espulsione, or CIE). In the CIE, detention is ordered under Italian law, with access to a judge. But no EU or Italian law authorizes detention in the hotspots, and the people prevented from leaving are not allowed to challenge the refusals. Greece also initially used detention outside its national law.
Detention outside the law is a serious breach of human rights. It also increases the risk of indefinite detention and violent treatment. When a person is detained outside of a framework of rules and oversight, they may be at the mercy of those in control of them.
The illegal character of Italy’s use of hotspot detention was highlighted in a report released by Amnesty International in November last year, and before that by the Italian migration law group ASGI [link in Italian]. Yet the Italian Government has failed to end the practice of detention or adopt a law governing it. The European Commission and EU agencies, which have promoted the hotspot model, and provide many of the staff who work in them, has ignored the lack of legal basis for detention.
The Khlaifia case has now been sent to the Committee of Ministers of the European Council in Strasbourg, which will require Italy to show that it has implemented the judgment. The Council can be expected to examine Italy’s current practice and call for an end to Italy’s illegal use of hotspots. At the same time, Italian courts may be called on to intervene in cases brought by migrants who have been unlawfully detained in “hotspots” over the last two years. Given the thousands of people affected, Italy needs to take urgent action.