EGMR

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II. THE ISSUE OF JURISDICTION UNDER ARTICLE I OF THE CONVENTION

63. Article 1 of the Convention provides:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention." [...]

2. The Court’s assessment [...]

75. There are other instances in the Court’s case-law of the extra-territorial exercise of jurisdiction by a State in cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State. In these specific situations, the Court, basing itself on customary international law and treaty provisions, has recognised the extra-territorial exercise of jurisdiction by the relevant State (see Banković, decision cited above, § 73, and Medvedyev and Others, cited above, § 65).

(b) Application to the instant case [...]

77. The Court observes that by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principle of international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extra-territorial exercise of the jurisdiction of that State (see paragraph 75 above). Where there is control over another, this is de jure control exercised by the State in question over the individuals concerned. [...]

78. [...] It concludes that the instant case does indeed constitute a case of extra-territorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention.

79. Moreover, Italy cannot circumvent its "jurisdiction" under the Convention by describing the events at issue as rescue operations on the high seas. In particular, the Court cannot subscribe to the Government’s argument that Italy was not responsible for the fate of the applicants on account of the allegedly minimal control exercised by the authorities over the parties concerned at the material time.

80. In that connection, it is sufficient to observe that in the case of Medvedyev and Others, cited above, the events at issue took place on board the Winner, a vessel flying the flag of a third State but whose crew had been placed under the control of French military personnel. In the particular circumstances of that case, the Court examined the nature and scope of the actions carried out by the French officials in order to ascertain whether there was at least de facto continued and uninterrupted control exercised by France over the Winner and its crew (ibid, §§ 66 and 67).

81. The Court observes that in the instant case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.

82. Accordingly, the events giving rise to the alleged violations fall within Italy’s "jurisdiction" within the meaning of Article 1 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION [...]

84. The Court observes that two different aspects of Article 3 of the Convention are at issue and must be examined separately: firstly, the risk that the applicants would suffer inhuman and degrading treatment in Libya and secondly, the danger of being returned to their respective countries of origin.

A. Alleged violation of Article 3 of the Convention on account of the applicants having been exposed to the risk of inhuman and degrading treatment in Libya [...]

1. The Court’s assessment [...]

122. The Court has already had occasion to note that the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers. It does not underestimate the burden and pressure this situation places on the States concerned, which are all the greater in the present context of economic crisis (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 223, 21 January 2011). It is particularly aware of the difficulties related to the phenomenon of migration by sea, involving for States additional complications in controlling the borders in southern Europe.

However, having regard to the absolute character of the rights secured by Article 3, that cannot absolve a State of its obligations under that provision.

123. The Court reiterates that protection against the treatment prohibited by Article 3 imposes on States the obligation not to remove any person who, in the receiving country, would run the real risk of being subjected to such treatment.

It notes that the numerous reports by international bodies and non-governmental organisations paint a disturbing picture of the treatment meted out to clandestine immigrants in Libya at the material time. The conclusions of those documents are moreover corroborated by the CPT report of 28 April 2010 (see paragraph 35 above).

124. The Court observes in passing that the situation in Libya worsened after the closure of the UNHCR office in Tripoli in April 2010 and the subsequent popular revolution which broke out in the country in February 2011. However, for the purposes of examining this case, the Court will refer to the situation prevailing in Libya at the material time. [...]

126. Those same reports clearly show that clandestine migrants disembarked in Libya following their interception by Italy on the high seas, such as the applicants, were exposed to those risks. [...]

128. In that regard, the Court observes that Libya’s failure to comply with its international obligations was one of the facts denounced in the international reports on that country. In any event, the Court is bound to observe that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see M.S.S., cited above, § 353, and, mutatis mutandis, Saadi, cited above, § 147).

129. Furthermore, the Court observes that Italy cannot evade its own responsibility by relying on its obligations arising out of bilateral agreements with Libya. Even if it were to be assumed that those agreements made express provision for the return to Libya of migrants intercepted on the high seas, the Contracting States’ responsibility continues even after their having entered into treaty commitments subsequent to the entry into force of the Convention or its Protocols in respect of these States (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 47, ECHR 2001-VIII, and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, 2 March 2010). [...]

131. The Court notes again that that situation was well-known and easy to verify on the basis of multiple sources. It therefore considers that when the applicants were removed, the Italian authorities knew or should have known that, as irregular migrants, they would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country. [...]

133. The Court observes firstly that that fact was disputed by the applicants, who stated that they had informed the Italian military personnel of their intention to request international protection. Furthermore, the applicants’ version is corroborated by the numerous witness statements gathered by the UNHCR and Human Rights Watch. In any event, the Court considers that it was for the national authorities, faced with a situation in which human rights were being systematically violated, as described above, to find out about the treatment to which the applicants would be exposed after their return (see, mutatis mutandis, Chahal, cited above, §§ 104 and 105; Jabari, cited above, §§ 40 and 41; and M.S.S., cited above, § 359). Having regard to the circumstances of the case, the fact that the parties concerned had failed to expressly request asylum did not exempt Italy from fulfilling its obligations under Article 3.

134. In that connection, the Court notes that none of the provisions of international law cited by the Government justified the applicants being pushed back to Libya, in so far as the rules for the rescue of persons at sea and those governing the fight against people trafficking impose on States the obligation to fulfil the obligations arising out of international refugee law, including the "non-refoulement" principle (see paragraph 23 above).

135. That non-refoulement principle is also enshrined in Article 19 of the Charter of Fundamental Rights of the European Union. [...]

136. Having regard to the foregoing, the Court considers that in the present case substantial grounds have been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. The fact that a large number of irregular immigrants in Libya found themselves in the same situation as the applicants does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above, § 132).

137. Relying on these conclusions and the obligations on States under Article 3, the Court considers that by transferring the applicants to Libya, the Italian authorities, in full knowledge of the facts, exposed them to treatment proscribed by the Convention. [...]

B. Alleged violation of Article 3 of the Convention on account of the fact that the applicants were exposed to the risk of arbitrary repatriation to Eritrea and Somalia [...]

148. In the instant case, the Court’s task is not to rule on the violation of the Convention in the event of repatriation of the applicants, but to ascertain whether there were sufficient guarantees that the parties concerned would not be arbitrarily returned to their countries of origin, where they had an arguable claim that their repatriation would breach Article 3 of the Convention. [...]

151. The Court considers that all the information in its possession shows prima facie that the situation in Somalia and Eritrea posed and continues to pose widespread serious problems of insecurity. That finding, moreover, has not been disputed before the Court.

152. Consequently, the applicants could arguably claim that their repatriation would breach Article 3 of the Convention. The Court must now ascertain whether the Italian authorities could reasonably expect Libya to offer sufficient guarantees against arbitrary repatriation.

153. The Court observes firstly that Libya has not ratified the Geneva Convention on Refugee Status. Furthermore, international observers note the absence of any form of asylum and protection procedure for refugees in Libya. [...]

156. In view of the foregoing, the Court considers that when the applicants were transferred to Libya, the Italian authorities knew or should have known that there were insufficient guarantees protecting the parties concerned from the risk of being arbitrarily returned to their countries of origin, having regard in particular to the lack of any asylum procedure and the impossibility of making the Libyan authorities recognise the refugee status granted by the UNHCR.

157. Furthermore, the Court reaffirms that Italy is not exempt from complying with its obligations under Article 3 of the Convention because the applicants failed to ask for asylum or to describe the risks faced as a result of the lack of an asylum system in Libya. It reiterates that the Italian authorities should have ascertained how the Libyan authorities fulfilled their international obligations in relation to the protection of refugees.

158. It follows that the transfer of the applicants to Libya also violated Article 3 of the Convention because it exposed the applicants to the risk of arbitrary repatriation.

IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 [...]

2. The Court’s assessment

(a) Admissibility [...]

180. Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.

181. In the instant case, the Court considers that the operation resulting in the transfer of the applicants to Libya was carried out by the Italian authorities with the intention of preventing the irregular migrants disembarking on Italian soil. In that connection, it attaches particular weight to the statements given after the events to the Italian press and the State Senate by the Minister of the Interior, in which he explained the importance of the push-back operations on the high seas in combating clandestine immigration and stressed the significant decrease in disembarkations as a result of the operations carried out in May 2009 (see paragraph 13 above).

182. Accordingly, the Court rejects the Government’s objection and considers that Article 4 of Protocol No. 4 is applicable in the instant case.

(b) The merits

183. The Court observes that, to date, the Čonka case (see judgment cited above) is the only one in which it has found a violation of Article 4 of Protocol No. 4. [...]

185. In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers. That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.

186. Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4. Accordingly, there has been a violation of that Article.

VI. ALLEGED VIOLATION OF ARTICLE 13 TAKEN TOGETHER WITH ARTICLE 3 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL No. 4 [...]

2. The Court’s assessment [...]

201. The Court has already concluded that the return of the applicants to Libya amounted to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4. The complaints lodged by the applicants on these points are therefore "arguable" for the purposes of Article 13.

202. The Court has found that the applicants had no access to a procedure to identify them and to assess their personal circumstances before they were returned to Libya (see paragraph 185 above). The Government acknowledged that no provision was made for such procedures aboard the military ships onto which the applicants were made to embark. There were neither interpreters nor legal advisers among the personnel on board.

203. The Court observes that the applicants alleged that they were given no information by the Italian military personnel, who had led them to believe that they were being taken to Italy and who had not informed them as to the procedure to be followed to avoid being returned to Libya. [...]

204. The Court has previously found that the lack of access to information is a major obstacle in accessing asylum procedures (see M.S.S., cited above, § 304). It reiterates here the importance of guaranteeing anyone subject to a removal measure, the consequences of which are potentially irreversible, the right to obtain sufficient information to enable them to gain effective access to the relevant procedures and to substantiate their complaints.

205. Having regard to the circumstances of the instant case, the Court considers that the applicants were deprived of any remedy which would have enabled them to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced. [...]

207. The Court concludes that there has been a violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4. It follows that the applicants cannot be criticised for not having properly exhausted domestic remedies and that the Government’s preliminary objection (see paragraph 62 above) must be dismissed. [...]