MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-18

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-18 J.A. and Others v. Italy (Application No. 21329/18) Supervision of the execution of the European Court’s judgments Reference document: DH-DD(2024)341

 

Application	Case	Judgment of	Final on	Indicator for the classification
21329/18	J.A. AND OTHERS	30/03/2023	30/06/2023	Complex problem
13755/18	A.B.	19/10/2023	19/10/2023
20860/20	A.S.	19/10/2023	19/10/2023
47287/17	A.T. AND OTHERS	23/11/2023	23/11/2023
13110/18	M.A.	19/10/2023	19/10/2023

Case description

These cases concern the detention of the applicants – migrants who arrived in Italy between May 2017 and October 2019 - in the hotspots[1] of Lampedusa and Taranto for periods ranging from 10 days to more than two months.

In all the cases, the European Court found that the conditions of the applicants’ stay in these centers amounted to inhuman and degrading treatment (violation of Article 3) and that their deprivation of liberty had no clear and accessible legal basis and was carried out in the absence of a reasoned decision ordering it. This in turn made it impossible for the authorities to inform the applicants of the grounds of their deprivation of liberty or provide them with sufficient information to challenge the grounds for their de facto detention before a court (violations of Article 5 §§ 1, 2 and 4).

In J.A. and Others, the Court also found that the refusal-of-entry and removal orders issued in the applicants’ cases did not have proper regard to their individual situations and thus constituted a collective expulsion (violation of Article 4 of Protocol No. 4 to the Convention).

In A.T. and Others, the Court also found that the authorities failed to indicate any specific remedy which the applicants, who were minors at the time of the events and were not provided a legal guardian, could have used to complain about the conditions of their detention (violation of Article 13 in conjunction with article 3).

Status of execution

The authorities submitted an action plan on 27 March 2024 concerning the cases of this group except A.T. and Others (DH-DD(2024)341). The information provided and that available in the public domain can be summarised as follows:

Individual measures

1)    Payment of the just satisfaction

In A.B. the just satisfaction awarded by the Court for non-pecuniary damage and costs and expenses was paid to the applicant on 19 March 2024. In A.S. the authorities indicated that information from the applicant is awaited to proceed with the payment. In J.A. and Others and M.A. the payment is ongoing.

2)    Other measures

 

The applicants were no longer detained in the hotpots of Lampedusa and Taranto when the Court issued these judgments. According to the information contained in the Court’s judgment, the applicants in the case of A.T. and Others were transferred to facilities for unaccompanied minors in July 2017.

In J.A. and Others, the applicants were expelled to Tunisia. The Court did not find a violation of Article 3 as regards the possible consequences of their expulsions.

General measures

1) Material conditions at the Lampedusa and Taranto hotspots

      i.        Background information

The number of persons who transited through the Lampedusa and Taranto hotspots increased substantially between 2018 and 2022 (respectively from 3 466 to 46 087 and from 978 to 5 048). In 2021, the migrants average stay in these centres was seven days in Lampedusa and twenty days in Taranto, while in 2022, it decreased to five days in both. With regard to unaccompanied minors, their average stay at the Lampedusa hotspot was eight days in 2022.[2] 

The hotspot of Taranto has been operational since 2017 and is mostly occupied by unaccompanied minors. Between 2018 and 2022, they represented 86% of newly arrived migrants, reaching 100% in some periods in 2018 and in 2021.[3]

     ii.        Management of the Lampedusa hotspot

In May 2023, the authorities entrusted the management of this centre to the Italian Red Cross until the end of 2025,[4] to improve the reception conditions, reduce the overcrowding and shorten the average stay of migrants.

The Red Cross is now responsible for the assistance of migrants at disembarkation points, their reception in the hotspot and the preparation and implementation of their transfers. Under the new management, the capacity of the centre has been increased from 389 to 640 places and, to avoid possible shortages of space and beds, additional structures inside and outside the center and a separate warehouse have been created.

Moreover, as regards the material conditions of stay in this hotspot, the authorities indicated that several services are provided to migrants through the cooperation of different stakeholders such as health assistance, distribution of clothing and personal hygiene products, preparation and distribution of meals and collection of waste.

To address the recurrent mass arrivals of migrants in Lampedusa and avoid  overcrowding of the hotspot, legislative measures were adopted in 2023 to strengthen and speed up the procedures for the transfer of migrants to similar facilities on the mainland.[5] A dedicated unit for this purpose has been established within the Ministry of the Interior and an ad hoc Commissioner has been appointed to ensure, on the island, a constant connection between the local and the Central authorities. The authorities indicated that as a result of these measures the weekly maximum capacity for transferring migrants by sea has been increased to around 5,900 people. 

Moreover, a project has been funded in cooperation with the International Organisation for Migration (IOM) to ensure the transfer of applicants for international protection also by plane, giving priority to vulnerable people (for more details see DH-DD(2024)341).[6]

2) Legal basis and safeguards attending migrants’ detention in hotspots

Hotspots are regulated by Article 10-ter of the Legislative Decree No. 286/1998, as amended by Law No. 46/2017, which provides for designated “crisis spots” (punti di crisi) to be established within first-line reception facilities for rescue and first aid purposes, where newly arrived migrants undergo pre-identification procedures and are provided with assistance and information.

Law No. 132/2018 on international protection, immigration and public security introduced the possibility to detain asylum seekers in hotspots for the time strictly necessary to ascertain their identity and citizenship and for a maximum period of thirty days.[7] Under the domestic regulation, the identification procedures should be concluded within 48 hours.[8]

Recently, decree-Law No. 20/2023 established that asylum seekers coming from countries deemed safe, can be detained for up to four weeks in designated areas within hotspots, repatriation centres and in any other facility the authorities consider suitable, if they do not meet certain requirements (e.g. lack of documents).

3) Procedural safeguards against collective expulsion

Under domestic law, migrants directed to hotspots should be properly informed of international-protection procedures, the relocation programme to other EU states and the possibility of voluntary assisted returns.[9]

The Ministry of Interior is responsible for conducting the screening and identification of migrants. During this process, migrants are required to complete an information sheet (“foglio notizie”), that gathers personal information with a view to the pre-determination of their legal status.[10]

 

Those persons who after identification and fingerprinting in hotspots do not manifest their intention to apply for asylum are identified as irregular migrants and, are notified by the authorities a refusal of entry order.[11]

On this point, the Court of Cassation stated that that authorities have a duty to effectively provide migrants with information on the possibility of seeking asylum, and failure to do so may result in invalidation of refusal of entry and detention orders.

4) Submissions from civil society (Rule 9 (2))

-       Association for Juridical Studies on Immigration (ASGI)

The NGO reported the persistence of several shortcomings in the managing of the migration flows at the Lampedusa hotspot, including as regards the continuing de facto deprivation of liberty of migrants without legal safeguards, the poor living conditions and the recurrent overcrowding of the centre. It further indicated that similar shortcomings have been observed in other hotspots nationwide. The NGO also reported that the practice, criticised by the Court,[12] of issuing refusal of entry and removal orders without an assessment of the individual situation of migrants continues. It further argued that, despite the relevant legal prohibition,[13] unaccompanied minors are systematically detained in hotspots, often for extended periods of time, in inadequate conditions.

-       L’Altro Diritto

The NGO argued that, despite the legislative changes adopted since 2017, the regulatory framework on administrative detention of migrants in hotspots remains inconsistent and incomplete, particularly with regards to the legal basis for such detention and the required legal safeguards. The NGO further reported that the nature and function of these centres is not clearly regulated by law, and it is uncertain whether in practice they are currently open or closed centres. It emphasised that, in its view, under these circumstances the detention of migrants in hotspots remains unlawful.

5) Other relevant information

-       Council of Europe Commissioner for Human Rights

In the report on her visit to Italy in June 2023, published on 14 December 2023,[14] the then Commissioner noted that as a result of the measures adopted by the Italian authorities, improvements on the reception conditions in the hotspot of Lampedusa could be observed particularly with regards to

sanitary and shelter facilities available to those waiting to be accommodated in the centre and the overall hygiene conditions. The report however highlighted that several challenges persisted, particularly in relation to overcrowding, and continued to make the provision of essential services difficult.[15]

Referring to the cases of J.A. and Others, the report also expressed concerns about widespread administrative detention of asylum seekers and the unsatisfactory procedure to provide information to migrants. It emphasised that delays in the onward transfers from hotspots – particularly from Lampedusa – could create situations of prolonged deprivation of liberty without any clear legal basis or access to an effective remedy and which could amount to arbitrary detention.

-       Italian Children’s Ombudsperson

After her visits, in October and November 2023, in several hotspots, the Ombudsperson expressed concerns over the excessive length of minors stay in these centres, sometimes protracted for six or seven months, in the absence of the appointment of a legal guardian.[16]

Analysis of the Secretariat

Individual measures

No individual measures are required, aside from the payment of the just satisfaction awarded by the Court, with respect to the poor detention conditions, grounds for detention and available remedies to challenge the detention conditions, since the applicants are no longer detained in the hotspots impugned in the judgments.

As regards the lack of examination of the applicants’ individual situation in the J.A. and Others case, which amounted to collective expulsions, no other measures appear required, aside from the payment of the sums awarded for non-pecuniary damage, given that the Court did not find a violation of Article 3 of the Convention due to the possible consequences of these expulsions.

Concerning the payment of the just satisfaction, the authorities should provide information on the payment of default interest in the case of A.B. in which the just satisfaction awarded by the Courts was paid outside the deadline established by the judgment (19 January 2024). The authorities should rapidly secure the payment of the just satisfaction awarded by the Court in the remaining cases and inform the Committee accordingly.

General measures

1) Material conditions in hotspots

The violations of Article 3 in these cases stem from the length of the applicants’ stay and the poor conditions in the hotspots of Lampedusa and Taranto in different periods between October 2017 and October 2019.

To guarantee non-repetition of these violations, the authorities must secure Convention compliant living conditions in the hotspots operating in Italy. To this end, it is crucial to prevent situations of overcrowding at times of massive arrivals of migrants which lead to the unavoidable deterioration of the material conditions of stay. This is particularly relevant for the hotspot of Lampedusa due to its geographical and logistical particularities.

Against this backdrop, it is noted that, since the events in these cases, the Italian authorities have adopted important measures to improve the reception conditions at the hotspot of Lampedusa and ensure that the stay of persons accommodated in this centre is limited to the time strictly necessary for their identification, as established by law.

In particular, with the assignment in May 2023 of the management of the hotspot to the Italian Red Cross the conditions there were improved considerably – the capacity of the centre was increased by almost 40%, several services have been established or improved to guarantee better living conditions, including health assistance and meal and clothing distribution. Moreover, the authorities have strengthened, under the coordination of a specific unit established for this purpose, their capability to transfer migrants, by sea and air, from Lampedusa to other similar facilities with a view to prevent the overcrowding of the centre.

As a result of these measures some improvements in the conditions of stay were reported in June 2023 by the Council of Europe Commissioner for Human Rights, (e.g. in the accommodation of persons awaiting admission to the centre and the overall hygienic conditions).[17] These positive developments can be noted with satisfaction.

It is however noted that the Commissioner and civil society reported persistent challenges and shortcomings which hindered the effective delivery of essential services to the persons accommodated in the centre.  

The available information does not allow a conclusive assessment of the impact of the measures adopted so far and on the need of additional remedial actions considering also the recurrent waves of significant arrivals to Lampedusa.[18]

To allow the Committee to carry out a comprehensive examination, the authorities should therefore provide their assessment and additional information on living conditions and overcrowding in this centre, combined with statistical data on the inflows and outflows of migrants and their average time of stay in the Lampedusa centre. They should further provide information on the current situation and the measures adopted or envisaged to improve the material conditions in the Taranto hotspot and as regards the other hotspots operating in Italy.

2) Legal basis and safeguards attending migrants’ detention in hotspots

i)              Background information

The authorities have regrettably not addressed this question in their action plan of March 2024.

It is recalled that the issue of the administrative detention of migrants in reception centres in Italy was previously raised by the judgment of Khlaifia and Others v. Italy.[19]

In that context, the authorities explained that the transit of migrants through the hotspots is conceived to be limited to the time strictly necessary to carry out medical examinations and identification operations. Once those who intend to apply for international protection and those who do not have the right to stay on national territory have been identified, they are transferred to other facilities and different procedures are envisaged by law according to their status (asylum seekers or irregular migrants). 

The Committee closed its examination of that case (CM/ResDH(2021)424) notably in the light of the above function of hotspots and the legislative measures adopted by the authorities between 2017 and 2020 which introduced the possibility to detain migrants, after their status (e.g. asylum seekers or irregular migrants) have been ascertained, in reception centres (including hotspots), under certain conditions (e.g. refusal to undergo identification procedures, risk of absconding, danger to public order) and safeguards (e.g. decision to detain, adequate information and judicial review).

ii)             Violations of Article 5 §§ 1, 2 and 4

The deprivation of liberty of the applicants in the cases of the J.A. and Others group did not fall under any of the above situations regulated by law (J.A. and Others, §§ 93-94). It was arbitrarily carried out without a clear and accessible legal basis and in the absence of any order giving reasons for it (see A.S. judgment, § 26).

Furthermore, the information provided by civil society and the recent report of the Council of Europe Commissioner for Human Rights are concerning as they indicate that the de facto detention of migrants in these centres under the same circumstances criticised by the Court continues to occur.

These circumstances suggest that the measures adopted by the authorities between 2017 and 2020 within the framework of the Khlaifia case may not prevent similar situations as those in the present cases from
re-occurring.

 

To provide an effective response to the violations of Article 5 in these cases, the authorities should guarantee that the detention of migrants in hotspots is carried out in conformity with the standards of the Convention and the relevant Court’s case law (i.e. based on clear and accessible legal basis, with adequate information about its reasons and possibility for judicial review of the lawfulness of the measure).

To allow the Committee to carry out a full assessment of the current relevant legal framework, which was further modified in 2023, and its application in practice, the authorities should clarify whether migrants can be presently detained in hotspots, under which circumstances and in accordance with what legal basis.[20] If applicable, they should provide comprehensive information on how provisions on deprivation of liberty of migrants in such centres, including in situations like those of the applicants, are concretely applied in practice. Examples of relevant administrative decisions ordering this type of detention and judicial decisions assessing its lawfulness should also be provided. 

With regard to the issues raised in the case of A.T. and Others, the information reporting the existence of a widespread practice to detain, for long periods of time, unaccompanied minors in adults’ centres is concerning.[21] The authorities should address this issue and indicate what measures have been adopted or are envisaged to secure that the existing legislative framework, which prohibits the detention of unaccompanied minors, is effectively applied.[22]

3) Procedural safeguards against collective expulsion

To prevent repetition of this violation, it is important to secure that the current applicable legislative provisions include the required Convention compliant guarantees as regards the treatment of refugees and asylum seekers and the assessment of their individual situation and that these safeguards and procedures are effectively and consistently applied in all circumstances.

The authorities have regrettably not submitted information on this question. The available information, including that provided by civil society, suggests that the shortcomings highlighted by this judgment have not been properly remedied.^[23]

The Committee may therefore wish to call on the authorities to indicate what remedial action they adopted or intend to adopt to address this issue and to submit comprehensive information on the relevant legal provisions, safeguards and procedure regulating the assessment of the individual situation of migrants and their concrete application.

4) Domestic remedies for unaccompanied minors to challenge conditions of detentions in hotspots

This issue is examined in the framework of the group of cases Darboe and Camara v. Italy.

Financing assured: YES