Abstract
Countless people have left the African continent seeking to reach European shores via the central Mediterranean Sea route, despite persistent efforts by Italian and EU authorities to counter migratory activities. International and regional human rights judicial bodies have provided some responses to the abuses faced by maritime migrants both at sea and on land throughout the years. In this case note, I analyze the judgment of the European Court of Human Rights in J.A. and Others v. Italy concerning the detention of maritime migrants in the Lampedusa hotspot center. To this end, I first illustrate the facts of the case. Second, I assess each claim made by the applicants in relation to the human rights abuses they suffered: inhuman and degrading treatment, arbitrary detention, and collective expulsion of aliens. I conclude that the judgment constitutes an important development in the Court’s case law upholding maritime migrants’ rights, albeit characterized by a few shortcomings. I also argue that the Court’s position as a human rights judicial body needs to be further strengthened in the future.
1 Abstract of the Decision
The case of J.A. and Others v. Italy was initiated by four migrants who arrived on Italian shores after a journey across the Mediterranean Sea. The applicants claimed that they were detained in the hotspot center of the island of Lampedusa for days in inhuman conditions and then returned to Tunisia. The application was lodged with the European Court of Human Rights (“ECtHR”) in April 2018. The ECtHR considered the alleged violations of three separate provisions: Article 3 of the European Convention on Human Rights (“echr”) on the prohibition of torture and/or inhuman and degrading treatment, Article 5 echr on the prohibition of arbitrary deprivation of liberty, and Article 4 of Protocol 4 to the European Convention on Human Rights on the prohibition of collective expulsion of aliens. It found that Italy had violated all three Articles and ruled in favor of the applicants on all grounds.
2 Key Passages from the Ruling
(Paragraphs lxvi–lxvii) “The Court notes that, in the present case, the applicants remained in the Lampedusa hotspot for ten days. In the light of the above, the Court dismisses the Government’s objection as to the applicants’ alleged lack of victim status and concludes that the applicants were subjected to inhuman and degrading treatment during their stay in the Lampedusa hotspot in violation of Article 3 of the Convention”.
(Paragraph lxxix) “The Court observes that, while the general rule set out in Article 5(1) is that everyone has the right to liberty, Article 5 para. 1 (f) provides an exception to that general rule, permitting treaties to control the liberty of aliens in an immigration context”.
(Paragraph xcvii) “[…] bearing in mind that the applicants were placed at the Lampedusa hotspot by the Italian authorities and remained there for ten days without a clear and accessible legal basis and in the absence of a reasoned measure ordering their retention, before being removed to their country of origin, the Court finds that the applicants were arbitrarily deprived of their liberty, in breach of the first limb of Article 5 para. 1 (f) of the Convention”.
(Paragraph xcix) “Therefore, the Court dismisses the Government’s objection as to the applicants’ alleged lack of victim status, concludes that Article 5 of the Convention is applicable and that there has been a violation of Article 5 paras. 1, 2 and 4 of the Convention”.
(Paragraph cxiii) “It should also be noted that, taking into account the short lapse of time between the signature by the applicants of the refusal-of-entry orders and their removal and the facts that they allegedly did not understand the content of the orders and that two of the applicants were not provided with a copy of them, the Government have not sufficiently shown that, in the circumstances of the case, the applicants benefited from the possibility of appealing against those decisions”.
(Paragraph cxvi) “Those decisions thus constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4 to the Convention and there has therefore also been a violation of that provision in the present case”.
3 Comment
3.1 Introduction
In 2023, Italy has been witnessing new peaks in the number of migrants arriving by boat on its shores. According to the United Nations High Commissioner for Refugees, the number of people who disembarked in Italy reached 36.339 within the first few months of this year.2 In March 2023, within 48 hours, around 1.350 people arrived on the island of Lampedusa by boat after embarking on the dangerous central Mediterranean route.3 The human rights violations suffered by maritime migrants both whilst at sea and on land have been known for years. More specifically, Lampedusa has become a prime example of the stark contrast between its tourism-driven visits and the presence on the island of one of the most important migrant hotspot centers in Europe.4 Indeed, the poor conditions of such “hotspots” – effectively, detention centers – particularly in Italy, Malta and Greece have been documented for years.5
Considering the history of human rights abuses and inhuman conditions of hotspot centers such as the one in Lampedusa, international judicial bodies have not always remained silent. Indeed, the facts of the J.A. and Others v. Italy6 (“J.A.”) case – dating back to 2017 – concern the detention of maritime migrants in the Lampedusa hotspot center. The judgment was delivered by the Chamber of the European Court of Human Rights (“ECtHR” or “the Court”) on 30 March 2023 and ruled that there had been a violation of the human rights of maritime migrants due to the inhuman conditions of the center, their arbitrary detention and subsequent return to Tunisia, their home country, as well as their country of departure.
This Article summarizes the relevant facts of the case and provides an analysis of the fundamental doctrinal points made by the ECtHR in this judgment. I will compare J.A. to the very similar case – both factually and legally – of Khlaifia and Others v. Italy.7 There are noteworthy similarities and differences from the Court’s prior case law. Within the period that separates the two rulings maritime migratory movements in the central Mediterranean Sea have not stopped.8 Indeed, departures from the African continent to reach European shores have carried on, despite the persistent efforts of Italian authorities and EU’s institutions to counter migration flows.9 Against this backdrop, it seems worth asking whether anything changed in the approach of the Court during the seven years that passed between the two cases. Beyond the substantive relevance of the J.A. case in relation to migrants’ rights protection, I argue that the judgment constitutes an important development in the ECtHR’s case law as it places itself as one of the most prominent decisions on human rights violations related to maritime migration. However, I also conclude that the ECtHR’s position as a human rights judicial body needs to be further strengthened in the future.
3.2 Facts and Judgment
In October 2017, four Tunisian nationals – the applicants in the present case – departed from the coast of their home country on a simple and poorly equipped boat which led them to a larger vessel, carrying around 100 migrants. Eventually, the vessel found itself in distress at sea and the migrants were rescued by an Italian ship which brought them to the island of Lampedusa. Upon arrival, the applicants “submitted that they underwent a medical check-up”.10 They also received a flyer containing some information which was not accessible to them. Last, they underwent identification procedures.11
In Lampedusa, the applicants stayed in a hotspot center. According to Article 2 of EU Regulation 2016/1624, “hotspot areas” have been established by the EU and its Member States “with the aim of managing an existing or potential disproportionate migratory challenge characterized by a significant increase in the number of migrants arriving at the external borders”.12 The main purpose of hotspot centers is to provide swift procedures for identification, registration and fingerprinting of migrants incoming in the EU.13
The applicants remained at the Lampedusa center for ten days in total. They described their conditions as inhuman and degrading, with very little interaction with the authorities and limited possibility to leave the facilities of the center itself.14 On 26 October 2017, the four applicants and others were transferred to the Lampedusa airport.15 The group reached the airport of Palermo where they met a representative from the Tunisian consulate who took notes of their identities. At last, they were forcibly removed to Tunisia by airplane on the same day.16
The applicants claimed that their rights under Article 3, Article 5 of the European Convention on Human Rights (“echr” or “the Convention”) and Article 4 of Protocol 5 to the echr had been violated. The Court assessed each one of the claims and found that Italy breached all three Articles.
3.3 Maritime Migrants’ Rights and Detention Centers
3.3.1 Inhuman and Degrading Treatment
The applicants submitted that the treatment received whilst at the hotspot center of Lampedusa amounted to inhuman and degrading treatment, in violation of a fundamental and non-derogable right.17 The prohibition is set out in Article 3 echr which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.18 To assess a violation of Article 3, the Court relied on several reports from both national and international sources documenting the overall “critical material conditions of the Lampedusa hotspot” and it noted that the center was known for being overcrowded.19 In particular, there were accounts that the Lampedusa hotspot “was conceived as a first reception center for very short stays of maximum forty-eight hours”.20 However, the ECtHR noted that the applicants remained in the center for a total of ten days.21 Based on this reasoning, the Chamber found a violation of the prohibition of inhuman and degrading treatment.22
The reasoning in J.A. departs from the Grand Chamber’s arguments in the case of Khlaifia: in 2016, the Court was asked to decide on the conditions of the detention center in Contrada Imbriacola – located likewise in Lampedusa – as well as on the ships Vincent and Audace where the applicants had been detained in the port of Palermo.23 More specifically, the applicants alleged that they had been subject to inhuman and degrading treatment due to the poor conditions of the detention center and the ships. The Grand Chamber however ruled that no breach of Article 3 had occurred, neither within the center, nor whilst the applicants were on the docked ships.24
The judgment in J.A. brings an interesting development in the ECtHR’s case law concerning Article 3 as the Court seems to heavily ground its reasoning of the length of stay of applicants in equally inhuman conditions in both cases. For, in J.A., the Court provides further clarification as to the conditions to cross the severity threshold necessary to find a breach of the Convention in cases of migrants’ detention where migrants should stay for a maximum of 48 hours. Both judgments held conditions of the detention centers to be poor and overcrowded. Yet, in Khlaifia the Grand Chamber ruled that the conditions of the detention center did “not exceed the level of severity required for it to fall within Article 3 of the Convention”.25 The Court here recalled, inter alia, the “emergency” situation that Italy was facing in 2011, when the facts of the case occurred as well as the fact that the migrants stayed in the center for only two or three days.26 Conversely, in J.A. the Court found that the long stay of the applicants in the hotspot center on the island of Lampedusa did constitute a violation of the prohibition of inhuman and degrading treatment.
The J.A. case offered a rare opportunity for the Court to review its unrefined position on the applicability of Article 3 echr in cases of migrants’ detention. On the one hand, the Chamber arguably seized this opportunity by finding a violation and grounding its reasoning on the number of days spent in the detention center which seems to be the deciding factor to find that the severity threshold was crossed. On the other hand, the Court’s judgment raises legitimate doubts. Once the Court establishes that the conditions of a detention center are inhuman and degrading, the length of stay alone may be an inadequate criterion to evaluate whether the severity threshold has been crossed. Considering the absolute importance of the prohibition of torture and inhuman and degrading treatment, in J.A. the Court could have better fleshed out several criteria – such as the seriousness of the overcrowded conditions of detention and the abusive physical and psychological treatment reserved to migrants by the authorities – that are required to find a violation of Article 3 echr, rather than so strongly relying on the length of stay as the deciding factor.
Moreover, taking Khlaifia as precedent, it would have been significant to know the Court’s position on the extent to which detention on a ship carrying maritime migrants docked at a port would amount to inhuman and degrading treatment and, following J.A., how many days would be required to find a violation of Article 3 echr in such conditions. I note that an assessment by the Chamber in this regard could have helped to further clarify both the conditions and the length of detention of maritime migrants amounting to inhuman and degrading treatment.
3.3.2 Arbitrary Detention
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […]
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. […]
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. […]
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
In this regard, the Court assessed whether the detention of the applicants was lawful in order “to prevent his effecting an unauthorized entry into the country”.27 The Chamber recounted reports that the Lampedusa center was described as “a closed area with bars, gates and metal fences that migrants are not allowed to leave”.28 In light of the above, the ECtHR accepted that a limitation of freedom of movement may be possible within the hotspot facilities in order to identify, register and interview the migrants (pursuant to Article 5(1)(f)).29 Nevertheless, the Court found that these were not the circumstances of the present case and ruled that the applicants had been deprived of their liberty, finding a breach of Article 5(1)(f) of the echr. Moreover, it was decided that the applicants were not given enough information on the reasons why they were being detained and, in turn, could have not been able to challenge the decision to detain them.30 Thus, the Court confirmed that there had been a violation of Articles 5(1), 5(2) and 5(4) of the Convention.
The Chamber’s judgment upheld the Court’s reasoning in Khlaifia. In 2016, the Grand Chamber found a violation of Article 5(1) since “the applicants’ deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness”.31 Further, the Court found a breach of Article 5(2) and Article 5(4) as the applicants were not informed about the conditions of their own detention.32
Thus, regarding the issue of arbitrary detention of migrants in hotspot centers, the Court seems to uphold its previous ratio and recognize that these spaces are often over-used by governments to prevent migrants from reaching safe destinations. Moreover, this judgment reinforces the argument that governments ought to justify why migrants are kept in border facilities without being given sufficient information on their conditions.33 The Court also importantly upheld that the dialectic of the “emergency” used to ground decisions to effectively detain migrants in inhumane conditions is not acceptable anymore.34
3.3.3 Collective Expulsion of Aliens
Last, the Court turned to the alleged violation of the prohibition of collective expulsion of aliens (Article 4 of Protocol 4 to the echr). The applicants submitted that the removal orders by Italian authorities had been shown very quickly, preventing them from understanding their content, provide consent, and/or appeal.35
Relying on the 2020 judgment of N.D. and N.T. v. Spain,36 the Court noted that the applicants were not interviewed by the authorities and the text of the orders of removal did not contain any information on the applicants’ personal circumstances.37 The ECtHR also confirmed that the Government did not provide sufficient proof that the applicants had time to appeal to the removal orders due to the “the short lapse of time between the signature by the applicants of the refusal-of-entry orders and their removal”.38 As follows, the Court ruled that there had indeed been a violation of the prohibition of collective expulsion of aliens in the case at hand.39
The Court’s conclusion in J.A. constitutes one of the few instances where a violation of Article 4 of Protocol 4 was found.40 Once again, the Chamber’s ruling departs from Khlaifia, in which the Court concluded that the expulsion of the applicants was not collective; rather, it was “the outcome of a series of individual refusal-of-entry orders”.41 Moreover, the applicants argued that they were not given the opportunity to undergo an individual interview. Yet, the Court noted that Article 4 of Protocol 4 “does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion”.42 The applicants did not submit such request, instead, they “underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion”.43 In conclusion, the Court found no violation of Article 4 of Protocol 4.
Considering the procedural guarantee entailed under Article 4 of Protocol 4 and the Khlaifia ruling, Venturi commented: “If the right to an individual interview is not provided for by Article 4 Protocol 4, how can a collective expulsion be effectively forestalled? Such interpretation restricts the scope of this provision inevitably”.44 To some extent, the J.A. judgment seems to depart from the Court’s previous reasoning. Indeed, in the present case, the applicants submitted that no interview had taken place.45 However, the ECtHR found that “the refusal-of-entry and removal orders issued in the applicants’ case did not have proper regard to their individual situations”.46
In sum, in J.A. the Court does not go as far as overturning Khlaifia and it holds that Article 4 of Protocol 4 does not necessarily entail the right to be interviewed prior to removal. However, the Chamber elaborates on two requirements to avoid an illegal collective expulsion. First, migrants ought to be given enough time before signing their orders to benefit “from any concrete possibility of appealing against the measures”.47 Second, it considered that an information sheet in the form of a questionnaire which is difficult to understand for migrants does not provide sufficient information on the orders.48 From an operational point of view, the reasoning of the Court clarifies what types of individual assessment can lead to illegal collective expulsion of aliens and, therefore, its legal significance cannot be underestimated. Nevertheless, the judgment is not fully satisfactory from a procedural perspective since the Court fails to clarify, in positive terms, what steps can be adopted by national authorities to have sufficient regard to individual situations. If a right to be interviewed does not exist under Article 4 of Protocol 4, what other forms of individual assessment can amount to a satisfactory standard of procedural guarantee? The Court regrettably remained silent on this point as it did in previous case law.49
3.4 The ECtHR (re)Positions Itself as an Enforcer of Maritime Migrants’ Rights – Is It Enough?
All considered, the J.A. judgment constitutes a step towards a more effective enforcement of maritime migrants’ rights. In the seven years between the factually almost identical cases of Khlaifia and J.A., the ECtHR’s approach in relation to migrants’ rights in detention centers has evolved. The Court upheld the ratio adopted in Khlaifia, for instance, in relation to Article 5 of the echr. Moreover, its case law enhanced the protections against inhuman and degrading treatment as well as against the collective expulsion of aliens. In these respects, the judgment may well be deemed overall satisfactory.
However, the situation is less positive if we widen the perspective and consider recent political developments in the European continent. The J.A. judgment arrives at a time where the Mediterranean Sea has become once again the tragic focal point of migrants’ boats shipwrecks.50 The current Italian government led by Giorgia Meloni has declared a new state of emergency to counter the new migration crisis.51 Anti-migration sentiments and political strategies are not limited to the Mediterranean region. Indeed, the United Kingdom has recently passed the Illegal Migration Bill,52 aimed to stop migrants seeking to cross the Channel to reach the UK on “small boats” and strongly criticized for its human rights-blindness and disregard for the echr.53
Against the backdrop of increasing anti-migration rhetoric employed by European politicians, the J.A. judgment constitutes an important decision upholding the rights of maritime migrants. One may observe that there is a clear difference between the human rights-driven approach of the Court and governmental efforts to counter migratory movements towards the European continent. The hiatus between the judicial stance of the Court and the European political landscape is also reinforced by anti-migration political strategies which stand in stark contrast with the ECtHR’s judgment of J.A. The use of the ‘state of emergency’ dialectic has been used by governments before, but the Court’s ratio in J.A. distances itself from this approach, employed by European States and EU institutions alike.
The divergence between recent judicial review and politics should not undermine the importance of an international ruling. Rather, in general terms, the relevance of a judgment delivered by a regional Court such as the ECtHR should ensure the fulfillment of international obligations and prevent abuses of States’ powers. Indeed, in J.A. the Court ultimately ruled that the applicants had been subjected to inhuman treatment, arbitrary detention, and had been collectively expelled and returned to Tunisia. In light of the judgment, these violations committed by Italy should prompt a timely questioning of migratory management activities employed by EU authorities and States, aimed to securitize54 and externalize55 border controls
Beyond the substantive legal importance of the judgment and its potential political implications, J.A. represents an opportunity to update the assessments of the role played by the ECtHR as a judicial body implementing the rights of maritime migrants crossing the Mediterranean Sea. Over a decade ago, the ECtHR delivered the landmark ruling of Hirsi Jamaa and Others v. Italy,56 where the Grand Chamber upheld the rights of a group of Somali and Eritrean migrants who were returned to Libya and exposed to a risk of ill-treatment. In Hirsi, the Court found a violation of Article 3 echr arguing that the migrants were effectively returned to Libya breaching the principle of non-refoulement.57 The ECtHR also found a violation of Article 4 of Protocol 4 since they were collectively expelled by Italy and Article 13 taken in conjunction with Articles 3 echr and Article 4 of Protocol 4 to the Convention.
Since Hirsi, the case law of the ECtHR concerning migrants’ rights has been scant. However, with the J.A. case the Court (re)positions58 itself as a key human rights enforcer, committed to the upholding of human rights of migrants arriving via sea routes. Nonetheless, one may wonder whether this judgment is enough. In the lead-up to J.A., the ECtHR dealt with very similar cases including H.A. v. Italy59 concerning a Tunisian national arrived in Italy via a makeshift boat and who was detained in the hotspot of Lampedusa. On 9 March 2023, just a few weeks before delivering the J.A. judgment, the Court declared the application inadmissible due to late lodging.60 Though the decision on H.A.’s inadmissibility of the Court is procedurally correct, it is almost paradoxical that the violations found by the same judicial body in J.A. could have been the reason why the applicant in H.A. could not submit its application on time. One may ask, then, whether the issue are the applicants, out of time to lodge their submissions, or the Court’s procedures, out of touch with reality.
3.5 Conclusion
In this Article, I have presented the principal facts of the J.A. case and commented on the reasoning and conclusions of the Chamber in relation to maritime migrants’ rights whilst in detention in Lampedusa. I have provided a comparative analysis using Khalifia and Others v. Italy in respect of the prohibition of inhuman and degrading treatment, the prohibition of arbitrary detention, and the prohibition of the collective expulsion of aliens. I have argued that the J.A. judgment – albeit not immune to a few shortcomings in its reasoning – constitutes a significant ruling, implementing human rights protection and clarifying the scope of the echr and Protocol 4 to the Convention, at least to an extent. Moreover, J.A. could guide future policy-making steps in the current anti-migration political climate with the manageable procedural stipulation it carves out. I have also argued that the J.A. judgment – as timely as it may seem in light of current media reports on the migratory landscape of the Mediterranean – should not be mistaken for a point of arrival for the Court. Rather, this judgment should be seen as a chance for the ECtHR to further solidify its (re)positioning as a key human rights judicial body in future cases relating to migrants’ rights both at sea and on land.
This case note is based on a blog post by the same author: Rocca, Matilde, ‘J.A. and Others v. Italy – Is the European Court of Human Rights turning its focus to maritime migrants?’, ejil: Talk!, 17 April 2023. <https://www.ejiltalk.org/j-a-and-others-v-italy-is-the-european-court-of-human-rights-turning-its-focus-to-maritime-migrants/>. The author is grateful to Jan-Henrik Hinselmann for his valuable comments on previous versions of this piece.
unhcr, Mediterranean Situation – Italy - Sea arrivals, last updated 23 April 2023, available at: <https://data.unhcr.org/en/situations/mediterranean/location/5205>.
InfoMigrants, “Italy: Over 1.300 migrants reach Lampedusa in 24 hours”, 10 March 2023, available at: <https://www.infomigrants.net/en/post/47401/italy-over-1300-migrants-reach-lampedusa-in-24-hours>.
wallis, “Lampedusa: Migrants moved from ‘hotspot’ to reduce overcrowding”, InfoMigrants, 11 July 2022, available at: <https://www.infomigrants.net/en/post/41821/lampedusa-migrants-moved-from-hotspot-to-reduce-overcrowding>.
InfoMigrants, “Migrants: Inadequate conditions in Lampedusa hotspot, says local association”, 8 December 2020, available at: <https://www.infomigrants.net/en/post/28970/migrants-inadequate-conditions-in-lampedusa-hotspot-says-local-association>.
J.A. and Others v. Italy, Application No. 21329/18, Judgment of 30 March 2023.
Khlaifia and Others v. Italy, Application No.16483/12, Judgment of 15 December 2016.
International Organization on Migration (iom), “Flow Monitoring – Europe”, available at: <https://migration.iom.int/europe?type=arrivals>.
See, inter alia, bello, “The spiralling of the securitisation of migration in the EU: from the management of a ‘crisis’ to a governance of human mobility?”, Journal of Ethnic and Migration Studies, 2020, p. 1327 ff.; ghezelbash et al., “Securitization of Search and Rescue at Sea: the Response to Boat Migration in the Mediterranean and Offshore Australia”, International and Comparative Law Quarterly, 2018, p. 315 ff.; moreno-lax, “The EU Humanitarian Border and the Securitization of Human Rights: The ‘Rescue-Through-Interdiction/Rescue-Without-Protection’ Paradigm”, Journal of Common Market Studies, 2018, p. 119 ff.; cantor et al., “Externalisation, Access to Territorial Asylum, and International Law”, International Journal of Refugee Law, 2022, p. 120 ff.
See J.A. and Others v. Italy case, cit. supra note 6, para. 5.
Ibid.
Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard, Art. 2, available at: <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R1624>.
European Commission, Migration and Home Affairs, Glossary - ‘Hotspot approach’, available at: <https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/hotspot-approach_en>.
J.A. and Others v. Italy case, cit. supra note 6, para. 6.
J.A. and Others v. Italy case, cit. supra note 6, para. 7.
J.A. and Others v. Italy case, cit. supra note 6, paras. 10–11.
See greer, “Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?”, Human Rights Law Review, 2015, p. 101 ff.
European Convention on Human Rights (“echr”), Art. 3.
J.A. and Others v. Italy case, cit. supra note 6, paras. 62–63.
J.A. and Others v. Italy case, cit. supra note 6, para. 19.
J.A. and Others v. Italy case, cit. supra note 6, para. 66.
J.A. and Others v. Italy case, cit. supra note 6, para. 67.
Khlaifia and Others v. Italy case, cit. supra note 7, para. 136. See also Safi v. Greece, Application No. 5418/15, Judgment of 7 July 2022.
Khlaifia and Others v. Italy case, cit. supra note 7, paras. 170, 199–201 and 210–211. See also M.S.S. v. Belgium and Greece, Application No. 30696/09, Judgment of 21 January 2011; Tarakhel v. Switzerland, Application No. 29217/12, Judgment of 4 November 2014.
Khlaifia and Others v. Italy case, cit. supra note 7, para. 199.
Khlaifia and Others v. Italy case, cit. supra note 7, paras. 178 et seq.
J.A. and Others v. Italy case, cit. supra note 6, para. 84.
J.A. and Others v. Italy case, cit. supra note 6, para. 92.
J.A. and Others v. Italy case, cit. supra note 6, para. 93.
J.A. and Others v. Italy case, cit. supra note 6, para. 98. See also Ilias and Ahmed v. Hungary, Application No. 47287/15, Judgment of 14 March 2017, where the Court held that Art. 5(1) was not violated whilst the applicants were held in the transit zone between Serbia and Hungary. Also J.R. and Others v. Greece, Application No. 22696/16, Judgment of 25 January 2018, where the ECtHR also found a violation of Art. 5(2) but did not a find violation of Art. 5(1) since the threshold of severity to find arbitrary detention was not reached.
Khlaifia and Others v. Italy case, cit. supra note 7, para. 107.
Khlaifia and Others v. Italy case, cit. supra note 7, paras. 121–122 and 135.
This is consistent with the Court’s previous case law which includes, inter alia, Kaak et Autres c. Grèce, Application No. 34215/16, Judgment of 3 October 2019, where the ECtHR held that an information brochure handed to migrants kept in detention is not enough to be properly informed about their circumstances.
goldenziel, “Khlaifia and Others v. Italy”, American Journal of International Law, 2018, p. 274 ff.
J.A. and Others v. Italy case, cit. supra note 6, paras. 102–103.
Although, notably, in the N.D. and N.T. case the Court found no violation of Art. 4 of Protocol 4. See N.D. and N.T. v. Spain, Applications Nos. 8675/15 and 8697/15, Judgment of 13 February 2020.
J.A. and Others v. Italy case, cit. supra note 6, paras. 107–108.
J.A. and Others v. Italy case, cit. supra note 6, para. 113.
J.A. and Others v. Italy case, cit. supra note 6, para. 116.
Other cases include Hirsi Jamaa and Others v. Italy [gc], Application No. 27765/09, Judgment of 23 February 2012; Čonka v. Belgium, Application No. 51564/99, Judgment of 5 February 2002; Sharifi and Others v. Italy and Greece, Application No. 16643/09, Judgment of 21 October 2014.
Khlaifia and Others v. Italy case, cit. supra note 7, para. 252.
Khlaifia and Others v. Italy case, cit. supra note 7, para. 248.
Khlaifia and Others v. Italy case, cit. supra note 7, para. 254.
venturi, “M.S.S. V. Belgium and Greece: When is a group vulnerable?”, Strasbourg Observers, 10 February 2011, available at: <https://strasbourgobservers.com/2011/02/10/m-s-s-v-belgium-and-greece-when-is-a-group-vulnerable/>.
J.A. and Others v. Italy case, cit. supra note 6, para. 102.
J.A. and Others v. Italy case, cit. supra note 6, para. 115.
J.A. and Others v. Italy case, cit. supra note 6, para. 103.
J.A. and Others v. Italy case, cit. supra note 6, paras. 112–113.
See, for instance, Asady and Others v. Slovakia, Application No. 24917/15, Judgment of 24 March 2020.
ansa, “Cutro shipwreck death toll rises to 90”, 25 March 2023, available at: <https://www.ansa.it/english/news/general_news/2023/03/25/cutro-shipwreck-death-toll-rises-to-90_4d14de23-665a-49fc-9170-0b9d18e569bc.html>.
Governo Italiano, Presidenza del Consiglio dei Ministri, “Comunicato stampa del Consiglio dei Ministri n. 28”, 11 April 2013, available at: <https://www.governo.it/it/articolo/comunicato-stampa-del-consiglio-dei-ministri-n-28/22332>.
UK Government Bill, Illegal Migration Act 2023.
See, inter alia, costello, “Cathryn Costello on the UK Immigration Bill”, Oxford Human Rights Hub, available at: <https://ohrh.law.ox.ac.uk/cathryn-costello-on-the-uk-immigration-bill/>; briddick, “Refugees, Deportation and Detention: The Illegal Migration Bill”, Oxford Faculty of Law Blogs, 10 March 2023, available at: <https://blogs.law.ox.ac.uk/blog-post/2023/03/refugees-deportation-and-detention-illegal-migration-bill>.
léonard, kaunert, “The securitization of irregular migration at the EU southern borders”, in Refugees, Security and the European Union (Routledge, 2019).
See cantor et al., cit. supra note 9.
Hirsi Jamaa and Others v. Italy case, cit. supra note 40. For a commentary see moreno-lax, “Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control?”, Human Rights Law Review, 2012, p. 574 ff.; cox, “Case Watch: European Ruling Affirms the Rights of Migrants at Sea”, Open Society – Justice Initiative, 26 February 2012, available at: <https://www.justiceinitiative.org/voices/case-watch-european-ruling-affirms-rights-migrants-sea>.
United Nations General Assembly, Convention Relating to the Status of Refugees, (Resolution 429(V) of 14 December 1950), Art. 33.
mann, “A Lost Opportunity for Border Justice at the European Court of Human Rights”, ejil:Talk!, 3 February 2022, available at: <https://www.ejiltalk.org/a-lost-opportunity-for-border-justice-at-the-european-court-of-human-rights/>.
H.A. v. Italy, Application No. 26049/18, Judgment of 9 March 2023.
European Convention on Human Rights (echr), Arts. 35(1) and 35(4). H.A. v. Italy case, cit. supra note 59, paras. 15–16.
