Hirsi Jamaa and Others v Italy  ECHR Application no. 27765/09 (23 February 2012)
In a landmark decision the Grand Chamber of the European Court of Human Rights held, unanimously, that Italy violated the European Convention of Human Rights by forcibly returning a group of asylum seekers by sea to Libya.
The applicants were 11 Somalian and 13 Eritrean nationals who along with about 200 people departed Libya on board three vessels bound for Italy. On 6 May 2009 the applicants’ vessel was intercepted by Italian authorities and all of the occupants including the applicants were forcibly returned to Libya. The interception and return of the applicants was in accordance with bilateral agreements between Italy and Libya to reduce clandestine immigration (these agreements were suspended following the revolution that broke out in Libya in 2011).
The United Nations High Commissioner for Refugees (UNHCR) was granted leave to intervene and participate in the oral proceedings.
Article 1 obligates contracting parties to accord everyone within their jurisdiction the rights and freedoms defined in the Convention. Italy contended that the applicants were not within its jurisdiction for the purposes of Article 1. Italy submitted that the interception of the vessels was conducted to save human lives on the high seas pursuant to international law obligations and that this did not result in the applicants coming within its jurisdiction. The Court rejected these submissions. The Court held that Italy could not “circumvent its ‘jurisdiction’ under the Convention by describing the events at issue as rescue operations on the high seas”. The Court concluded that Italy had jurisdiction because the applicants were under the “continuous and exclusive de jure and de facto control of the Italian authorities” for the entire period from interception to the transfer to Libya.
Article 3 of the Convention provides that:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The applicants alleged that as a result of being returned they had been exposed to the risk of torture or inhuman or degrading treatment in Libya and in Eritrea and Somalia.
Risk of ill-treatment in Libya
The Court noted the difficulties in coping with increasing influxes of migrants, however, observed that this cannot absolve a State party of its non-refoulment obligations under Article 3.
The Court noted that the numerous reports by international bodies and non-governmental organisations showed that clandestine migrants in Libya faced a real risk of ill-treatment including:
- arrest and detention since there was no distinction between irregular migrants and asylum seekers;
- inhumane conditions in detention for example, torture, poor hygiene conditions and lack of appropriate medical care; and
- risk of return to their country of origin at any time;
It was noted that while the UNHCR did have a presence in Libya, the Government did not recognise their activity and refugee status granted by the agency did not guarantee protection for refugees in Libya. The Court further observed that Libya’s failure to comply with its international obligations undermined any contention that adequate protection existed through domestic laws and ratification of international human rights treaties.
The Court found that there were substantial grounds for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. The Court rejected Italy’s contention that Libya was a ‘safe third country’ and held that Italy could not “evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya”.
The Court also rejected Italy’s submission that obligations under Article 3 did not arise because the applicants had not sought asylum from the Italian authorities. The mere fact that the applicants had opposed their disembarkation in Libya could not, according to the Government, be considered to be a request for protection, imposing on Italy an obligation under Article 3 of the Convention
Risk of ill-treatment in Eritrea/Somalia
The Court accepted that Eritrea and Somalia face serious problems of widespread insecurity and that individuals forcibly repatriated are at a real risk of inhuman treatment. The Court found that Italy knew or should have known that there were insufficient guarantees protecting the applicants from arbitrary repatriation by Libya to their country of origin in light of the following factors:
- Libya had not signed the Refugees Convention;
- Libya did not have a procedure granting protection to refugees; and
- Libya had previously forcibly returned asylum seekers and refugees to high-risk countries.
As a result the Court held that Italy violated Article 3 because it exposed the applicants to the risk of arbitrary repatriation.
Article 4 Protocol 4
Article 4 of Protocol No. 4 prohibits the collective expulsion of aliens. The Court held that removal of the applicants to Libya violated Article 4 since the Italian authorities failed to carry out any form of examination of each applicant’s individual situation.
The Court held that there had been a violation of Article 13 (right to an effective remedy) because the applicants were unable to lodge their complaint with a competent authority and ‘obtain a thorough and rigorous assessment’ of their protection claims before they were transferred to Libya.
The Court ordered that Italy compensate the applicants €15 000 each.
Significance and relevance
As many nations around the world deal with the complex problem of irregular migration by sea this historic judgment is a timely reminder that border control and interception measures must comply with international human rights obligations. It also highlights the particular vulnerability of asylum seekers and refugees who travel by sea and emphasises the need to safeguard their fundamental rights and freedoms.
The judgment is of particular relevance to Australia with the opposition recently announcing that its policy to turn back all asylum seeker boats to Indonesia will become a ‘core policy’. While Australia is not bound by the European Convention on Human Rights, it is party to the International Covenant on Civil and Political Rights and the Convention Against Torture which protect the absolute and non-derogable right to freedom from torture, cruel, inhuman or degrading treatment. Accordingly, the judgment can provide Australia with significant guidance to ensure any policy involving the return of asylum seekers is compliant with its international human rights obligations, in particular, non-refoulement.
The decision is available online at: http://hudoc.echr.coe.int/eng?i=001-109231
Prahba Nandagopal is a human rights lawyer.