ECtHR / Application no. 27765/09 / Judgement

Hirsi Jamaa and Others v. Italy
Policy area
Irregular migration and return
Deciding body type
European Court of Human Rights
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
23/02/2012
ECLI (European case law identifier)
ECLI:CE:ECHR:2012:0223JUD002776509

Povelja o temeljnim pravima Europske unije

Title II: Freedoms

Article 19 - Protection in the event of removal, expulsion or extradition

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  • ECtHR / Application no. 27765/09 / Judgement
    Key facts of the case:
     

    1) The case originated in an application (no. 27765/09) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eleven Somali nationals and thirteen Eritrean nationals (“the applicants”), whose names and dates of birth are shown on the list appended to this judgment, on 26 May 2009.

    ...

    3) The applicants alleged, in particular, that their transfer to Libya by the Italian authorities had violated Article 3 of the Convention and Article 4 of Protocol No. 4. They also complained of the lack of a remedy satisfying the requirements of Article 13 of the Convention, which would have enabled them to have the above-mentioned complaints examined.

    ...

    A. Interception and push-back of the applicants to Libya
     
    9) The applicants, eleven Somali nationals and thirteen Eritrean nationals, were part of a group of about two hundred individuals who left Libya aboard three vessels with the aim of reaching the Italian coast.
     
    10) On 6 May 2009, when the vessels were 35 nautical miles south of Lampedusa (Agrigento), that is, within the Maltese Search and Rescue Region of responsibility, they were intercepted by three ships from the Italian Revenue Police (Guardia di finanza) and the Coastguard.
     
    11) The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The applicants alleged that during that voyage the Italian authorities did not inform them of their real destination and took no steps to identify them. All their personal effects, including documents confirming their identity, were confiscated by the military personnel.
     
    12) On arrival in the port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants’ version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships.
     
    13) At a press conference held on 7 May 2009, the Italian Minister of the Interior stated that the operation to intercept the vessels on the high seas and to push the migrants back to Libya was the consequence of the entry into force on 4 February 2009 of bilateral agreements concluded with Libya, and represented an important turning point in the fight against clandestine immigration. In a speech to the Senate on 25 May 2009, the Minister stated that between 6 and 10 May 2009 more than 471 irregular migrants had been intercepted on the high seas and transferred to Libya in accordance with those bilateral agreements. After explaining that the operations had been carried out in application of the principle of cooperation between States, the Minister stated that the push-back policy was very effective in combating illegal immigration. According to the Minister of the Interior, that policy discouraged criminal gangs involved in people smuggling and trafficking, helped save lives at sea and substantially reduced landings of irregular migrants along the Italian coast, which had decreased fivefold in May 2009 as compared with May 2008.
     
    14) During the course of 2009, Italy conducted nine operations on the high seas to intercept irregular migrants, in conformity with the bilateral agreements concluded with Libya.
     
     
    B. The applicants’ fate and their contacts with their representatives
     
    15) According to the information submitted to the Court by the applicants’ representatives, two of the applicants, Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman (nos. 10 and 11 respectively on the list appended to this judgment), died in unknown circumstances after the events in question.
     
    16) After the application was lodged, the lawyers were able to maintain contact with the other applicants, who could be contacted by telephone and e-mail. Fourteen of the applicants (appearing on the list) were granted refugee status by the office in Tripoli of the Office of the United Nations High Commissioner for Refugees (UNHCR) between June and October 2009.
     
    17) Following the revolution which broke out in Libya in February 2011, forcing a large number of people to flee the country, the quality of contact between the applicants and their representatives deteriorated. The lawyers are currently in contact with six of the applicants: (i) Mr Ermias Berhane (no. 20 on the list) managed to land, unlawfully, on the Italian coast. On 25 May 2011 the Crotone Refugee Status Board granted him refugee status; (ii) Mr Habtom Tsegay (no. 19 on the list) is currently at Chucha detention camp in Tunisia. He plans to return to Italy; (iii) Mr Kiflom Tesfazion Kidan (no. 24 on the list) is resident in Malta; (iv) Mr Hayelom Mogos Kidane and Mr Waldu Habtemchael (nos. 23 and 13 on the list respectively) are resident in Switzerland, where they are awaiting a response to their request for international protection; (v) Mr Roberl Abzighi Yohannes (no. 21 on the list) is resident in Benin.
     
     
    Outcome of the case:

    For these reasons, the Court

    1. Decides by thirteen votes to four to strike the application out of its list in so far as it concerns Mr Mohamed Abukar Mohamed and Mr Hasan Shariff Abbirahman;
    2. Decides unanimously not to strike the application out of its list in so far as it concerns the other applicants;
    3. Holds unanimously that the applicants were within the jurisdiction of Italy for the purposes of Article 1 of the Convention;
    4. Joins to the merits unanimously the preliminary objections raised by the Government concerning the non-exhaustion of domestic remedies and the applicants’ lack of victim status;
    5. Declares admissible unanimously the complaints under Article 3;
    6. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of being subjected to ill-treatment in Libya and rejects the Government’s preliminary objection concerning the applicants’ lack of victim status;
    7. Holds unanimously that there has been a violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of being repatriated to Somalia and Eritrea;
    8. Declares admissible unanimously the complaint under Article 4 of Protocol No. 4;
    9. Holds unanimously that there has been a violation of Article 4 of Protocol No. 4;
    10. Declares admissible unanimously the complaint under Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4 to the Convention;
    11. Holds unanimously that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and of Article 13 of the Convention taken in conjunction with Article 4 of Protocol No. 4 to the Convention and rejects the Government’s preliminary objection concerning the non-exhaustion of domestic remedies;
    12. Holds unanimously

    (a) that the respondent State is to pay the applicants, within three months, the following amounts:

    (i) EUR 15,000 (fifteen thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, which sums are to be held by the representatives in trust for the applicants;

    (ii) EUR 1,575.74 (one thousand five hundred and seventy-five euros seventy-four cents) in total, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

    (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 February 2012 pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  • Paragraphs referring to EU Charter

    Paragraph referring to the EU Charter in the Court judgment: 

    135) That non-refoulement principle is also enshrined in Article 19 of the Charter of Fundamental Rights of the European Union. In that connection, the Court attaches particular weight to the content of a letter written on 15 July 2009 by Mr Jacques Barrot, Vice-President of the European Commission, in which he stressed the importance of compliance with the principle of non-refoulement in the context of operations carried out on the high seas by member States of the European Union (see paragraph 34 above).

     

    Paragraphs referring to the EU Charter in the concurring Opinion of Judge Pinto de Albuquerque: 

    Provision is made in international refugee law for the prohibition of refoulement of refugees (Article 33 of the 1951 United Nations Convention relating to the Status of Refugees and Article 2 § 3 of the 1969 Organization of African Unity’s Convention Governing the Specific Aspects of Refugee Problems in Africa – “the OAU Convention”), as well as in universal human rights law (Article 3 of the 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment and Article 16 § 1 of the 2006 United Nations International Convention for the Protection of All Persons from Enforced Disappearance) and regional human rights law (Article 22 § 8 of the 1969 American Convention on Human Rights, Article 12 § 3 of the 1981 African Charter of Human Rights and People’s Rights, Article 13 § 4 of the 1985 Inter-American Convention to Prevent and Punish Torture and Article 19 § 2 of the 2000 Charter of Fundamental Rights of the European Union). There is no such explicit prohibition in the European Convention on Human Rights, but the principle has been acknowledged by the Court as extending beyond the similar guarantee under international refugee law.

    ...

    The prohibition of collective expulsion of aliens is foreseen in Article 4 of Protocol No. 4 to the European Convention on Human Rights, Article 19 § 1 of the Charter of Fundamental Rights of the European Union, Article 12 § 5 of the African Charter on Human and People’s Rights, Article 22 § 9 of the American Convention on Human Rights, Article 26 § 2 of the Arab Charter on Human Rights, Article 25 § 4 of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and Article 22 § 1 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.