Overview

In 2023, the European Court of Human Rights (ECtHR) issued two judgments against Italy concerning irregular migration, focusing on the prohibition of inhuman and degrading treatment and arbitrary detention. Both judgments J.A. and Others v. Italy and A.T. and Others v. Italy found violations of the rights protected under Articles 3 and 5 of the European Convention on Human Rights (ECHR). The decisions in the cases explicitly indicated shortcomings in migrant reception and retention conditions in Italian hotspots, emphasizing that minors were more vulnerable to human rights violations than other migrants.

J.A. and Others v. Italy: Arbitrary deprivation of liberty and poor conditions in Italian hotspots

The scope of the case J.A. and Others v. Italy encompassed the applicants’ retention in the Lampedusa hotspot, the material conditions they endured, and their forced removal to their country of origin.

The applicant Tunisian migrants were intercepted by an Italian ship and brought to Lampedusa Island following an emergency at sea on October 16, 2017. They were placed in the island’s Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza), in accordance with Article 17 of Decree-Law No. 13 of February 17, 2017. Upon their arrival, the applicants spent ten days in the hotspot. Over the course of their stay, they could not leave the hotspot, and the reception conditions were of very poor quality.

On October 26, 2017, the applicants, together with 40 other people, went through an undressed search and were then directed to the Lampedusa Airport. At the airport, they were made to sign entry-refusal orders issued by the Agrigento Police Headquarters (Questura). The applicants stated that they did not understand the content of the document they were signing, nor did they receive a copy of it. Before being repatriated to their country of origin, the applicants underwent another search, were restrained with Velcro straps, and had their mobile phones taken away. On October 26, 2017, the applicants were forcibly removed to Tunisia right after being flown from Lampedusa to Palermo.

The Court first assessed the applicants' claim of poor material conditions in the hotspot under Article 3 ECHR. It found that Italy was unable to provide evidence of the adequacy of the applicants' living conditions in the Lampedusa facility. The applicants submitted photographs demonstrating poor hygiene conditions and inadequate living spaces to the ECtHR, along with the report from the National Guarantor of the Rights of Persons Detained or Deprived of Their Liberty (Garante nazionale dei diritti delle persone detenute o private della libertà personale) and the 2017 Italian Senate report, which acknowledged the poor hygiene conditions and the overall incapacity of the Lampedusa hotspot. Such evidence was considered sufficient to indicate the deficient material conditions of reception during the period the applicants stayed there. Therefore, the Court determined that the applicants' rights under Article 3 ECHR were violated.

Secondly, the Court assessed the applicants' claims regarding their denial of liberty while being held in the hotspot, as well as their inability to challenge the lawfulness of the measure of repatriation, in violation of Article 5, paragraphs 1, 2, and 4 of the ECHR. The Court noted that Article 5(1) ECHR stipulates that restrictive measures cannot be arbitrary under any circumstances, and that Article 5(1), letter (f) ECHR provides an exception to the right to liberty in the case of a person ‘effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition’. However, exceptions must be “lawful”, meaning that any detention measure must be in accordance with substantive and procedural rules enshrined in national law. The Court also considered the Italian Ministry of Interior’s Roadmap of 28 September 2015, which outlined the identification and registration of migrants as the primary functions of hotspots, excluding any detention function. 

The restriction on liberty of persons hosted in the hotposts are not per se unlawful, as it is imposed for a defined time and in order to identify and register the persons concerned or until their repatriation following an order is carried out. In the case under examination, however, the applicants’ deprivation of liberty did not classify as lawful under Article 5(1), letter (f), as the measure was not regulated by law, nor was the duration of their retention on the island. Moreover, the ECtHR found that the applicants were deprived of their rights under Article 5(2) ECHR ‘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’ and 5(4) ECHR ‘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’, as Italy failed to demonstrate that, in the timeframe between the signing of the entry refusal orders and carrying out of the deportation, the applicants could challenge the measure.

Another claim the ECtHR assessed, finding a violation, concerned Article 4 of Protocol No. 4 to the ECHR, which prohibits the collective expulsion of aliens. The ECtHR restated that collective expulsion must be contextualized by examining each individual case objectively. In the present case however, it was noted that the entry refusal orders issued for the first two applicants contained uniform text rather than an individualized assessment. 

In conclusion, in the judgment of March 30, 2023, the ECtHR held unanimously that Articles 3, 5 paragraphs 1, 2, and 4 of the ECHR, as well as Article 4 of Protocol No. 4 to the ECHR, were violated. The ECtHR deemed Italy to pay EUR 8,500 for non-pecuniary damage to each applicant, and EUR 4,000 jointly to the applicants for costs incurred. 

A.T. and Others v. Italy: Unaccompanied minors in Italian hotspots

The case A.T. and Others v. Italy, similar to J.A. and Others v. Italy, addressed the applicants’ confinement in an Italian hotspot, the Taranto Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza – CSPA), and the material living conditions in the facility.  

The applicants, who were minors at the time of the facts, reached Italy by boat on May 22, 2017, and claimed refugee status the following day in the Taranto hotspot. Three of the applicants, I.C., M.J. and K.I.S, were relocated to centers designed for unaccompanied minors in the same region upon the Court’s guidance on July 13, 2017, while the applicant A.T. was transported to another reception facility on July 15, 2017. The Taranto Juvenile Court ordered that the three minors who were transferred in the region to be put under the care of the social services of Taranto on July 28, 2017, and each was assigned to a legal guardian. No decision was communicated regarding A.T., who was relocated to a facility outside the region in the preceding weeks. The ECtHR began examining the case by striking out the part of the application pertaining to applicants other than A.T., I.C., M.J., and K.I.S., as their legal representative had lost contact with them. 

The applicants claimed a violation of their rights under Article 3 ECHR, due to the inadequate material conditions in the hotspot. They claimed that the facility was designed solely for adults, was overcrowded, and had unhealthy living conditions. They presented to the ECtHR photographs and other evidence from the 2017 report of the Italian Senate’s Extraordinary Commission for Human Rights. The report’s chapter concerning minors stated that accommodation facilities in the center were inappropriate, the heating was poor, clothing and hygiene items provided were inadequate, the minors were not allowed to leave the facility, and the individuals placed in the center were overstaying the period intended for them. The applicants, who stayed in the hotspot for around a month and twenty days, claimed that the conditions they endured were more severe than those described in the report, as the hotspot exceeded its hosting capacity throughout their stay, with some individuals remaining for two months instead of the designated some days. Accordingly, the ECtHR decided that the applicants’ rights under Article 3 ECHR had been violated as they endured degrading and inhuman treatment.

Concerning the issue of deprivation of liberty, the applicants argued that they had been deprived of their liberty while being held at the hotspot, that their deprivation of liberty was not based on any “clear and accessible” legal ground, and that they were unable to contest the measure imposed on them. The ECtHR deemed that there was an arbitrary detention and denial of liberty violating Article 5 (1), letter (f) first limb, since the minors were held in the hotspot without a justified detention order. Adding to the lack of “clear and accessible” legal grounds for retention, the ECtHR acknowledged that the State was unable to facilitate the applicants' ability to contest the measure imposed on them at the hotspot before a judicial body. Following these considerations, the ECtHR found a violation of Article 5 paragraphs 1, 2 and 4 of the ECHR. Ensuing the breach of the ECHR, the applicants, on the basis of Article 13 in conjunction with Article 3 ECHR, claimed that their inability to contest the detention measure before the ECtHR was due to the failure to assign them a legal guardian. The ECtHR moreover concluded that Article 13 was violated in conjunction with Article 3 ECHR.

In its judgment, the ECtHR unanimously ruled that Italy pay each applicant EUR 6,500 for non-pecuniary damages, and EUR 4,000 to the applicants collectively for expenses incurred before the Court.

Evaluation

The cases J.A. and Others v. Italy and A.T. and Others v. Italy, both having facts that occurred in 2017, were ruled on by the ECtHR in 2023. The cases had considerable similarity. The ruling concerning minors at the hotspots in the case A.T. and Others v. Italy followed the earlier judgment in J.A. and Others v. Italy, and found the State responsible for the inhuman and degrading treatment of the applicants due to the poor material conditions in the hotspot, in breach of Article 3 ECHR, as well as for arbitrary detention in violation of Article 5 ECHR.

Even though in both cases the authority unlawfully restricted the persons’ liberty, in A.T. and Others v. Italy the applicants were denied their liberty solely on the ground of being minors, unlike anyone else staying in the same facility at the time. On the same basis, the applicants were unable to challenge the measure imposed on them without a legal guardian, indicating their dependence on further action by the State authorities.

The cases highlighted the State’s lack of preparedness in providing adequate legal and material treatment to irregular migrants and asylum-seekers in hotspots during the year 2017. The A.T. and Others v. Italy case details the situation of minors in the Italian hotspots, where they were especially at risk of human rights violations due to their intersectionality as minor migrants.