Analysis of a judgment of the European Court of Human Rights: Hirsi Jamaa and Others v Italy

Introduction


Under the onslaught of armed conflicts, instability in the countries of northern Africa and the Near East, migrants and asylum seekers are massively trying to enter EU countries. The problems that arise are not new and do not date from the migrant crisis, but the way they were solved in the previous period was significant for what the crisis brought. The judgment of Hirsi Jamaa and others v. Italy is particularly important because the European Court of Human Rights took a position regarding jurisdiction over intercepted ships, developed and explained several guarantees arising from Article 3 for persons who may be found on such ships, and examined for the first time whether the prohibition of collective expulsion (Article 4 of Protocol No. 4 of the European Convention on Human Rights) applies in a case involving the removal of foreigners to a third country carried out outside the national territory. The case is of significant importance for those countries located on the southern and south-eastern borders of the European Union. When a state returns someone to a third country, which may further repatriate the person, this is also a violation of rights guaranteed by the Convention. The Convention now clearly applies to state migration control operations wherever they are located, even on the high seas.


Situation of the case

The case concerns 11 Somali applicants and 13 Eritrean nationals. Individuals who are part of a group of approximately 200 migrants leaving Libya in 2009. They are heading to Italy with three vessels. When the vessels were approximately 50-60 km from Lampedusa, on 6 May 2009 (a region in which Malta is responsible for maritime rescue or search) the persons were intercepted by Italian coastal vessels and transferred to Italian military vessels and then taken away in Tripoli. In the application, the applicants state that they were not told where they were being taken on this trip, that no one checked their identity and that after a ten-hour voyage they were handed over to the authorities in Libya. In this case, the Italian authorities referred to the bilateral agreements concluded with Libya from February of the same year, concluded with the aim of combating illegal migration, migrant smuggling, human trafficking and, above all, rescuing people at sea. This case is not isolated, in the same year a dozen such cases of interception were made in accordance with such bilateral relations between Italy and Libya. According to information submitted to the Court by the applicants' representatives, at the time of the verdict two of the applicants died under unknown circumstances. Between June and October 2009, the office of the UN High Commissioner for Refugees (UNHCR) in Tripoli granted refugee status to fourteen of the applicants.


Detected injuries

Jurisdiction of Italy according to Article 1 of the ECHR

Initially, what makes the judgment particularly important is the fact that the Court found that the applicants were under the jurisdiction of Italy, that is, that Italy is responsible for the case according to Article 1 of the Convention. Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) establishes the obligation to respect human rights. The state is obliged to protect the rights of all persons under its authority, regardless of citizenship, residence, civil status, situation or legal capacity. The jurisdiction of the signatory states, in terms of Article 1 of the Convention, is primarily territorial, and it is expected that it is exercised normally throughout the entire territory of the state. The jurisdiction of the State beyond its border can primarily be determined based on ratione personae (the power or control exercised over the person of the applicant) and ratione loci (on the basis of control exercised over the foreign territory in question). According to international customary law and the flag principle, a state's jurisdiction extends beyond its territory to ships flying its flag, that is, registered in that state. Here the Court clearly says that a ship sailing on the high seas is subject to the exclusive jurisdiction of the State under whose flag it flies. In addition, the prohibition of torture, invoked by the applicants, is guaranteed as an absolute right, valid for everyone under the jurisdiction of a state party to the Convention (according to Article 1 of the ECHR). However, following the example contained in the El-Masri case, the Convention also has its extraterritorial application, if deportation to a non-signatory country would expose the person to a violation of Article 3 of the Convention, thus expanding the scope of the Convention and the protection itself, as it is in the mentioned case. The principle of international law laid down in the Italian Navigation Code provides that a ship sailing on the high seas is subject to the exclusive jurisdiction of the flag State that flies it.



Violation of Article 3 of the ECHR

The Court, further ,singled out various aspects of Article 3 of the Convention which are examined separately:
1. the risk of exposure to inhuman and degrading treatment in the country of deportation (Libya) and
2. the danger of repatriation the victims to their country of origin.

The principle of non-refoulement is equally applicable to the open sea. The Court established through its practice that the expulsion or deportation of a person to a country where he/she may be subjected to treatment contrary to Article 3, raises the responsibility of the deporting state, according to the Convention. To determine whether or not there was a risk of ill-treatment one must examine the foreseeable consequences of the applicant's removal to the receiving country, taking into account the general situation there as well as his/her personal circumstances. In such cases, the Court often gives importance to information contained in more recent reports from independent international human rights organizations such as Amnesty International, or government sources. The Court's position is that the application of domestic laws and the ratification of international agreements guaranteeing the respect of fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment when there are credible sources that have reported practices applied or tolerated by the authorities, that are obviously contrary to the principles of the Convention. Thus, the state cannot avoid responsibility by relying on bilateral agreements with another state, in this case Libya. The Court therefore took the view that when the applicants were transferred to Libya, the Italian authorities knew or should have known that there were insufficient guarantees to protect the persons against the risk of being arbitrarily returned to their countries of origin, in particular due to the absence of any asylum procedure and the impossibility to force the Libyan authorities to recognize the refugee status granted by the UNHCR. A State is not relieved of its obligations under Article 3 of the Convention because the applicants failed to claim asylum or to describe the risks they faced as a result of the absence of an asylum system in Libya. The returning state should ensure that the mediating country provides sufficient guarantees to prevent repatriation, and this obligation is even more important when the mediating country is not a signatory country to the Convention.


Violation of Article 4 of Protocol 4 of the ECHR

Article 4 of Protocol 4 of the ECHR contains an prohibition on the expulsion of foreigners. Article 4 of Protocol 4 distinguishes between two types of collective expulsion: expulsion of a group that has common characteristics and expulsion of a group of individuals without considering their individual situation. The principle of prohibition of collective expulsion imposes the requirement that each submission be considered on an individual basis, in a fair and objective manner. Thus, the expulsion of a group of individuals, even if preceded by the identification of each of the members, may constitute a collective measure if it ignores other important elements that characterize the personal history of the individuals.
According to the practice of the ECtHR, foreigners who are subject to the ban on collective expulsion are not only those with legal residence in the territory, but "all those who do not have a real right to citizenship in the country, regardless of whether they pass through the country or stay or are domiciled there, regardless of whether are refugees or have entered the country on their own initiative or are stateless or possess another nationality."
Hirsi Jamaa v. Italy establishes the obligation for states to register persons who arrive irregularly at their borders and to inform them of their situation, their rights, as an important procedural aspect of the ban on return. It also imposes an obligation on states to provide access to the asylum procedure to asylum seekers under their jurisdiction, including those rescued on the high seas. In the judgment, the ECtHR examined for the first time whether the ban on collective expulsion, contained in Article 4 of Protocol no. 4 applies to a case involving the removal of foreigners to a third country, carried out outside the national territory. The ECtHR decided that the transfer of the applicants to Libya was carried out without an individual approach of examining each individual situation of each of the applicants separately. Also, the applicants were not subjected to any identification procedure by the Italian authorities, and they were only subject to transhipment on Italian warships and their unloading on Libyan soil. The Court notes that personnel on warships were not trained to conduct individual interviews and were not assisted by interpreters or legal counsel. This was enough for the Court to decide that there were insufficient guarantees in the case to ensure that the individual circumstances of each of the persons concerned were subjected to a detailed examination and concluded that the removal of the applicants was of a collective nature.


Violation of Article 13 in conjunction with Article 3 and Article 4 Protocol 4 of the ECHR

Article 13 of the Convention stipulates that anyone whose human rights and freedoms have been violated has the right to an effective remedy before the national authorities, regardless of whether the violation originates from officials or not.
The Government of Italy admitted that it was not possible to assess the personal circumstances of the applicants on board warships. The applicants claimed that they were not given any information by Italian military personnel, who led them to believe that they were being guided to Italy (corroborated testimony by UNHCR, KST and Human Rights Watch). Hence, the applicants were not able to present their complaints before the competent authority. Even though in practice a criminal remedy was available against the ship's military personnel, this did not meet the criterion for suspensive (suspensive) action. The Court reiterated the requirement, derived from Article 13, to suspend the execution of the measure when the measure was contrary to the Convention and had potentially irreversible effects. The Court concluded that there was a violation of Article 13 in conjunction with Article 3 and Article 4 of Protocol no. 4.


Summary judgment outcome

The case falls under the jurisdiction of Italy pursuant to Article 1 of the European Convention on Human Rights. Two violations of Article 3 of the Convention were found - the applicants were at risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea. Violation of Article 4 of Protocol no. 4. Declared violation of Article 13 taken in connection with Article 3 and Article 4 of Protocol No. 4.
The Court awarded each petitioner fifteen thousand euros for non-material damage, as well as a total of one thousand, five hundred and seventy-five euros and seventy-four cents for costs and expenses.

Conclusion

We mention the judgment because of its several importance: determination of jurisdiction, found double violations of Article 3 of the Convention, found violation of Article 13 of the Convention which refers to the right to an effective legal remedy, and in connection with Articles 3 and 4 of Protocol 4 And, as a special case, the judgment established a violation of Article 4 of Protocol 4. The case of Chonka v. Belgium[xvii] and the case of Hirsi Jamaa et al. v. Italy are the two cases in which a violation of the prohibition of collective expulsion was found. In the case in question, thanks to the stakeholders and the reports of the UNHCR as well as other international or non-governmental organizations, the ECtHR noted that persons forcibly returned to Eritrea and Somalia face torture and detention for having left the country illegally. Which means that relying on the opinion of impartial observers and using amici curiae in this case is of particular importance.