MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-19

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-19 Khlaifia and Others v. Italy (Application No. 16483/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)1062, DH-DD(2021)190, DH-DD(2019)671, CM/Del/Dec(2021)1398/H46-13

 

Application	Case	Judgment of	Final on	Indicator for the classification
16483/12	KHLAIFIA AND OTHERS	15/12/2016	Grand Chamber	Complex problem

Case description

The case concerns the detention in a reception centre and then on ships in the harbour at Palermo of three irregular migrants who landed on the Italian coast in 2011 as part of the events related to the “Arab Spring” in Tunisia.

The European Court found that the applicants’ detention had no clear and accessible legal basis. This made it impossible for the authorities to inform them of the grounds of their detention, while the Italian legal system did not provide for the possibility of judicial review of their detention (violations of Article 5 §§ 1, 2 and 4).

The Court considered that the conditions of the applicants' detention did not reach the threshold of gravity required to qualify as inhuman or degrading treatment. However, it observed that the Government had not indicated any remedies by which the applicants could have complained about the conditions in which they were held (violation of Article 13 taken together with Article 3).

Status of execution

A. Last examination by the Committee of Ministers (March 2021)

The Committee’s previous examination of this case took place in March 2021 (1398^th meeting (DH)) and focused on the general measures^[1] required to ensure non-repetition of the violations with regards to:

(i) the absence of legal basis and adequate safeguards for the administrative detention of migrants in reception centres and (ii) the lack of an effective remedy to complain about the conditions of such detention.

With regards to the first question, the Committee, having previously noted[2] that legislative measures adopted in 2018 had provided a legal basis to the detention of asylum seekers in hotspots, noted the information provided on 15 February 2021 on more recent legislative developments (adoption of Law Decree No. 130 in October 2020). It instructed the Secretariat to prepare a detailed analysis of the current legislative framework governing the administrative detention of migrants in view of a conclusive assessment of the authorities’ response to the judgment.

With regards to the second question, the Committee noted the information provided by the authorities on the possibility for migrants to complain about the conditions in which their administrative detention is carried out in urgent proceedings under Article 700 of the Code of Civil Procedure and to seek financial redress in proceedings under Article 2043 of the Civil Code. However, in the absence of any judicial decision indicating that these avenues meet the requirements of an effective remedy (and noting also the doubts raised by civil society about their potential effectiveness), the Committee invited the authorities to ascertain whether more recent case-law developments have allowed to fill this gap in the domestic legal order. In the absence of such developments, it called upon them rapidly to take measures to address this problem.

B. Developments since the Committee’s last examination

On 15 October 2021, the authorities provided an action report and requested that the examination of this case be closed (DH-DD(2021)1062). The Committee also received two Rule 9.2 communications from civil society, on 12 and 22 October 2021 and a response from the authorities to the latter on 28 October 2021 (DH-DD(2021)1079 and DH-DD(2021))1130).

The main elements in the authorities’ submissions can be summarised as follows:

1)     Legal basis and safeguards attending migrants’ administrative detention

The authorities underline that the legislative measures adopted between 2017 and 2020^[3] to amend the relevant domestic legal framework^[4] have established a legal basis and adequate safeguards for the administrative detention of migrants. 

They recall that all irregular migrants arriving in Italy through the Mediterranean are channelled into hotspots. The transit of migrants through these centres is conceived to be limited to the time strictly necessary to carry out medical examinations and identification operations with a view to identify those who intend to apply for international protection and those who do not have the right to stay on national territory. Migrants are then transferred to other facilities and different procedures are envisaged by law according to their status (asylum seekers or irregular migrants). 

With regards to irregular migrants who do not have the right to stay on national territory, their administrative detention can be ordered in repatriation centres when it is not possible to immediately carry out their expulsion and in other circumstances stipulated by law, for example when there is a risk that the persons concerned may abscond or when it is necessary to make additional enquiries concerning their identity and nationality or to acquire the required travel documents. In the absence of sufficient places in repatriation centres, the judicial authorities may authorise their detention in other suitable facilities^[5] (including hotspots) for no longer than 48 hours (for more details, see DH-DD(2021)190 and DH-DD(2021)1062).

With regards to asylum seekers, the current legislative framework envisages the possibility to detain them in hotspots for a maximum of 30 days, to ascertain their identity and citizenship. If at the end of this period it has been impossible to ascertain or verify this information, detention can be extended for a period of maximum 90 days (see below) and is carried out in repatriation centres (i.e. centres in which migrants await the execution of their expulsion). Asylum seekers can be detained in repatriation centres for the same period also on other grounds established by law, for example in case of reiterated refusal to undergo identification or when they are considered to pose a danger to public order. However, they cannot be deprived of their liberty for the sole purpose of examining their asylum application.

The detention in repatriation centres of migrants awaiting expulsion and of asylum seekers withheld for identification purposes can be ordered for an initial (renewable) period of 30 days. Legislation adopted in October 2020, reduced the maximum terms of detention in these centres in most cases from 180 to 90 days.

When migrants hold a regular identification document, several measures alternative to the deprivation of liberty are envisaged by law such as the handing over of the passport or the obligation to reside at a specific location. Migrants in vulnerable conditions cannot be detained.

With regards to the information provided to migrants on their detention, any order to detain is issued by the police authorities (Questore) based on a case-by-case assessment and notified to the persons concerned in a language they understand. These orders must include an indication of the reasons underlying the deprivation of liberty and the rights of the persons concerned in the judicial review proceedings of the decision to detain them.

Moreover, provisions introduced in 2020 require the authorities to inform, in a language they understand, migrants detained in repatriation centres of their status and rights including with regards to the judicial review of their detention. The authorities further indicate that migrants detained in hotspots also receive, with the help of cultural mediators, information about, among other things, the grounds of their detention (for more details, see DH-DD(2019)671 and DH-DD(2021)190).

As regards the judicial review of the lawfulness of the administrative detention, every order to detain is automatically communicated for validation to the judicial authorities (Justices of the Peace or the first instance civil courts), within 48 hours from its adoption. In these proceedings, migrants are assisted by a counsel and have the right to be heard. Legal aid and interpretation are provided where necessary. The judicial decisions, which must be issued within 48 hours, may be appealed before the Court of Cassation. If the decision to validate the detention is not issued within 48 hours, the person detained must be released.

2)     Lack of an effective remedy concerning the conditions of migrants’ administrative detention

The authorities reiterate that migrants can bring urgent proceedings under Article 700 of the Code of Civil Procedure to complain about the living conditions in the facilities where they are detained and to seek interim measures to put an end to the situation complained of. In support, they provide a decision issued in February 2021 by the Tribunal of Milan granting the urgent application of a migrant detained in a repatriation centre, who had complained that the seizure of his mobile phone by the authorities had breached his right to communicate with the outside world. The decision ordered the authorities to return the phone and ensure the possibility to use it.

In response to the Committee’ last decision, they restate that migrants may obtain redress for unjust detention through proceedings pursuant to Article 2043 of the Civil Code and provide in support several judicial decisions (issued between 2019 and 2021) of first instance and appeal courts awarding compensation to migrants whose detention in repatriation centres had been found unlawful.

The authorities stress that these remedies can be used potentially in any situation in which urgent actions are required to avoid an imminent and irreversible damage (proceedings under article 700 of the Code of Civil Procedure) or when the damage caused by a negligent act must be compensated (proceedings under Article 2043 of the Civil Code). The general wording of these provisions has allowed domestic courts in recent years to broaden their application to cover also questions related to migration (for more details see DH-DD(2019)671 and DH-DD(2021)190). 

The authorities also reiterate the importance of the role played by the National Guarantor for the rights of persons deprived of personal liberty (“National Guarantor”) in monitoring the living conditions in any reception centres in which deprivation of liberty is implemented and, following the broadening of its mandate in October 2020, in receiving individual complaints by persons detained in repatriation centres.[6] 

Recent Rule 9.2 submissions

In their latest submissions, received on 12 and 22 October 2021, the Italian Coalition for Civil Liberties and Rights (CILD), Associazione per gli Studi Giuridici sull'Immigrazione (ASGI) and A Buon Diritto consider that the deficient implementation, notably at the hotspot of Lampedusa, of the current legislative framework regulating administrative detention of migrants renders its safeguards ineffective. They indicate that detention in hotspots continues to occur in practice without an order to detain and migrants are held there until identification procedures are completed. They further indicate that during this time, which can be particularly lengthy, migrants do not have access to legal assistance which in turn hinders their concrete possibility to make use of the civil-law remedies put forward by the authorities to complain about their living conditions in these centres (for details, see DH-DD(2021)1079 and DH-DD(2021)1130).

In their response, the authorities notably indicate that migrants’ stay in hotspots is very short[7] and their access to legal assistance (and human rights organisations) including to complain about their living conditions is ensured. In support they submit a list of qualified lawyers available to assist migrants at the hotspot of Lampedusa drawn up by the Bar Association of Agrigento and sent in 2018 to the manager of the centre. They also draw attention to the relevant legislation[8] which provides that lawyers representing asylum seekers, human rights organisations, the Office of the High Commissioner for Refugees, migrants’ family members and religious ministers have access to reception centres (for details, see DH-DD(2021)1130).

Analysis by the Secretariat

-       As regards the legal basis and safeguards attending migrants’ administrative detention

The legislative reforms adopted by the authorities to implement this judgment have established in the Italian legal system a clear and accessible legal basis and the required Convention safeguards for the administrative detention of migrants. The authorities have thus responded fully and adequately to the Court’s findings under Article 5, §§ 1, 2 and 4 of the Convention. 

Thus, unlike at the time of the events of this case (2011), the current domestic legal system envisages the possibility to detain migrants (asylum seekers and migrants awaiting expulsion) in hotspots, repatriation centres and other adequate facilities. The relevant provisions regulate the grounds for the deprivation of liberty (e.g. refusal to undergo identification procedures, risk of absconding, danger to public order); its duration (e.g. maximum 30 days for asylum seekers in hotspots and 90 days in repatriation centres) and the possibility to apply alternatives to detention under certain circumstances. They further require the authorities to provide adequate information to the persons detained about the grounds of their detention. Every decision to detain must indicate the grounds of detention and the rights related to the ensuing judicial review proceedings and must be notified to the persons concerned in a language they understand.

These decisions are administrative in nature as they are taken by the police authorities, but they are subject to timely and automatic judicial review (within 48 hours of their adoption) of their lawfulness. The due process rights characterising these proceedings (i.e. migrants have the right to be heard, they are assisted by a counsel, legal aid is provided where necessary and judicial decisions may be appealed), the powers of the competent courts (i.e. to quash the orders to detain if found unlawful) and the prescribed time-frame for completing the review at first instance (96 hours from the issuance of the order to detain) appear moreover fully in line with the requirements of Article 5, § 4, as laid down in the Courts’ case-law. 

-       As regards the lack of an effective remedy concerning the conditions of migrant administrative detention

It is recalled that in this judgment the Grand Chamber found a violation of the right to an effective remedy because the Italian authorities had not provided to the Court indications as to the existence of such remedies in domestic law. It is also recalled that the Court found the conditions of the applicants’ detention compliant with the requirements of Article 3 of the Convention.

Against this background, the information and the judicial decisions provided by the authorities on the combination of two civil law remedies, appears to indicate with a sufficient degree of certainty that these avenues allow migrants in administrative detention to bring before domestic courts complaints related to their living conditions and to obtain adequate redress, should these conditions reach the threshold of gravity required to qualify as inhuman or degrading treatment.

With regards to the preventive remedy, urgent proceedings under Article 700 of the Civil Code may be initiated by migrants seeking the rapid adoption of interim measures to put an end to the breach of one of their rights while in administrative detention thus preventing irremediable consequences. The judicial decision (issued in 2021) put forward by the authorities, confirms that in these proceedings the domestic courts are competent to examine complaints brought by migrants in administrative detention about the violation of their rights as established by law (in that case the right to communicate with the outside) and adopt adequate and timely measures to put an end to the violation complained of (restitution of the phone and possibility to use it). While this decision concerns the conditions of a detention in a repatriation centre, there are currently no elements to indicate that similar complaints would not be examined if brought by migrants detained in hotspots.

With regards to the compensatory remedy, proceedings under Article 2043 of the Civil Code may be initiated by migrants seeking financial redress for the damages caused by an unlawful conduct of the authorities during an administrative detention. The recent judgments provided by the authorities are relevant as they show the effectiveness of this remedy to provide redress with regards to a key aspect of the administrative deprivation of liberty (i.e. its lawfulness). While these decisions do not directly concern the living conditions in reception centres, they apply, as stressed by the authorities, the overarching principle established by the Court of cassation^[9] that administrative detention can occur only in conformity with the strict requirements established by law. As one such requirement is that reception centres must guarantee living conditions that are respectful of human dignity, it appears that these proceedings may provide effective redress also in cases when the conditions of administrative detention are not in line with the requirements of Article 3 of the Convention.

Conclusion:

With regards to the concerns raised by civil society in this case, it is noted that in essence they call into question several aspects of the implementation of the current legislative framework regulating the administrative detention of migrants and as such, they appear to fall outside the scope of the violations found in this judgment. As the Italian authorities are bound to take full account of the relevant Convention principles when applying the domestic legislation, it can nevertheless be expected that they will consider and address these issues in the context of a continuing dialogue with the stakeholders operating on the ground and with the National Guarantor, whose monitoring activity and recommendations are an essential feature of the new system.

In the light of the foregoing, the Committee of Ministers may wish to close its supervision of the execution of this judgment.

Financing assured: YES