»Asylrecht gilt auch auf dem Mittelmeer«

In today’s Grand Chamber judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), which is final1, the European Court of Human Rights held, unanimously, that:

The applicants fell within the jurisdiction of Italy for the purposes of Article 1 of theEuropean Convention on Human Rights; There had been two violations of Article 3 (prohibition of inhuman or degrading treatment)of the Convention because the applicants had been exposed to the risk of ill-treatment inLibya and of repatriation to Somalia or Eritrea; There had been a violation of Article 4 of Protocol No. 4 (prohibition of collectiveexpulsions);

There had been a violation of Article 13 (right to an effective remedy) taken inconjunction with Article 3 and with Article 4 of Protocol No.4. The case concerned Somalian and Eritrean migrants travelling from Libya who had been intercepted at sea by the Italian authorities and sent back to Libya.

Principal facts

The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search
and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli. The applicants say that during the journey the Italian authorities did not tell
them where they were being taken, or check their identity. Once in Tripoli, after a 10-hour voyage, they were handed over to the Libyan authorities. At a press conference on 7 May 2009 the Italian Minister of the Interior said that the interception of the vessels on the high
seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that had come into force on 4 February 2009, marking an important turning point in the fight against illegal immigration.

In a speech to the Senate on 25 May 2009 the Minister stated that between 6 and 10 May 2009 more than 471 clandestine migrants had been intercepted on the high seas and transferred to Libya in accordance with those bilateral agreements. In his view, that pushback policy discouraged criminal gangs involved in people smuggling and trafficking, helped save lives at sea and substantially reduced landings of clandestine migrants along the Italian coast. During the course of 2009 Italy conducted nine operations on the high seas to intercept clandestine migrants, in conformity with the bilateral agreements concluded with Libya. On 26 February 2011 the Italian Defence Minister declared that the bilateral agreements with Libya were suspended following the events in Libya. According to information submitted to the Court by the applicants’ representatives, two of the
applicants had died in unknown circumstances. Between June and October 2009 fourteen of the applicants had been granted refugee status by the office of the UN High Commissioner for Refugees (UNHCR) in Tripoli. Following the revolution in Libya in February 2011 the quality of
contact between the applicants and their representatives deteriorated. The lawyers are currently in contact with six of the applicants, four of whom live in Benin, Malta or Switzerland and some of whom are awaiting a response to their request for international protection. One of the applicants is in a refugee camp in Tunisia and is planning to return to Italy. In June 2011 refugee status was granted to one of the applicants in Italy after he had clandestinely returned there.

Decision of the Court

The question of jurisdiction under Article 1

Only in exceptional cases did the Court accept that acts of the member States performed, or producing effects, outside their territories could constitute an exercise of jurisdiction by them. Whenever the State, through its agents operating outside its territory, exercised control andauthority over an individual, and thus its jurisdiction, the State was under an obligation to secure the rights under the Convention to that individual. Italy did not dispute that the ships onto which the applicants had been embarked had been fully within Italian jurisdiction. The Court reiterated the principle of international law, enshrined in the Italian Navigation Code, that a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. The Court could not accept the Government’s description of the operation as a “rescue operation on the high seas” or that Italy had exercised allegedly minimal control over the applicants. The events had taken place entirely on board ships of the Italian armed forces, the crews of which had been composed exclusively of Italian military personnel. In the period between boarding the ships and being
handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. Accordingly, the events giving rise to the alleged2009 fourteen of the applicants had been granted refugee status by the office of the UN High Commissioner for Refugees (UNHCR) in Tripoli. Following the revolution in Libya in February 2011 the quality of contact between the applicants and their representatives deteriorated. The lawyers are currently in contact with six of the applicants, four of whom live in Benin, Malta or Switzerland and some of whom are awaiting a response to their request for international protection. One of the applicants is in a refugee camp in Tunisia and is planning to return to Italy. In June 2011 refugee status was granted to one of the applicants in Italy after he had clandestinely returned there.

Article 3 Risk of suffering ill-treatment in Libya

The Court was aware of the pressure on States resulting from the increasing influx of migrants, which was a particularly complex phenomenon when occurring by sea, but observed that this could not absolve a State of its obligation not to remove any person who
would run the risk of being subjected to treatment prohibited under Article 3 in the receiving country. Noting that the situation in Libya had deteriorated after April 2010, the Court decided to confine its examination of the case to the situation prevailing in Libya at the material time. It noted that the disturbing conclusions of numerous organisations2 regarding the treatment of clandestine immigrants were corroborated by the report of the Committee for the Prevention of Torture (CPT) of 20103.

Irregular migrants and asylum seekers, between whom no distinction was made, had been systematically arrested and detained in conditions described as inhuman by observers4, who reported cases of torture among others. Clandestine migrants had been at risk of being
returned to their countries of origin at any time and, if they managed to regain their freedom, had been subjected to particularly precarious living conditions and exposed to racist acts. The Italian Government had maintained that Libya was a safe destination for migrants and that
Libya complied with its international commitments as regards asylum and the protection of refugees. The Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves
sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices contrary to the principles of the Convention. Furthermore, Italy could not evade its responsibility under the Convention by referring to its subsequent
obligations arising out of bilateral agreements with Libya. The Court noted, further, that the Office of the UNHCR in Tripoli had never been recognised by the Libyan Government. That situation had been well-known and easy to verify at the relevant time. The Court therefore
considered that when the applicants had been removed, the Italian authorities had known or should have known that they would be exposed to treatment in breach of the Convention. Furthermore, the fact the applicants had not expressly applied for asylum had not exempted
Italy from its responsibility. The Court reiterated the obligations on States arising out of international refugee law, including the “non-refoulement principle” also enshrined in the Charter of Fundamental Rights of the European Union. The Court attached particular weight in this regard to a letter of 15 May 2009 from Mr Jacques Barrot, Vice-President of the European Commission, in which he reiterated the importance of that principle 5.

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