Introduction

On the 9th April 2026 the European Court of Human rights (ECtHR) delivered a judgement on the Case H.D. v. ITALY (Application no. 41645/23)  finding Italy guilty of the unlawful detention of an unaccompanied minor for over five months at the Reception Centre for Asylum Seekers (C.A.R.A.) in Isola di Capo Rizzuto, which is intended for adults. The Court had been called upon to assess the compatibility of Italy’s actions in the case of H.D. with Articles 3, 5 and 13 of the ECHR. The judgment highlights some of the structural shortcomings of the system for managing and detaining migrants in Italy, in light of the European Convention on Human Rights (ECHR).

The Facts of the case

At the time of the events, in 2023, the applicant was seventeen years old and, unlike today, Italian law, in line with international and European standards, prohibited in all cases the placement of minors in reception centres for adults.

The applicant (H.D.), a Burkinabe national, after his arrival in Italy on 24 June 2023, was detained for five months at the Reception Centre for Asylum Seekers (C.A.R.A.) in Sant’Anna, in the municipality of Isola Capo Rizzuto (Crotone),  until 6 December 2023. This occurred in spite of the fact that he had been granted a residence permit one month after his arrival on the grounds of his vulnerable status. 

According to the European Court, this amounted to de facto detention, as he was prevented, without any explanation either verbal or in written, from leaving the premises and even from consulting his lawyers, thus infringing his right to a fair trial.

A report from the Association for Legal Studies on Migration, suggests that a ban on leaving the centre is also standard practice, describing it as “typical of the hotspot approach” informally implemented at the facility. The building in question is a former military facility equipped with barbed-wire fences and bars on the windows, where, as the Court notes, the detention of minors does not appear to be the exception but rather the rule. Indeed, according to ASGI, 238 minors were present in June 2023 and approximately 8646 transited between July 2022 and March 2023. 

The Court takes note of the conditions of detention highlighted in a report by the National Guarantor for Persons Deprived of Their Liberty: characterised by

• overcrowding (830 people in total, compared with 641 places for adults);
• extremely poor material and sanitary conditions (e.g. ASGI reported in March 2023 that it had gathered several testimonies regarding the inadequacy of healthcare, to the extent that “several minors presented with rashes, blisters, etc., due to scabies, without any treatment and/or referral by doctors”;
• lack of the necessary reception facilities for minors (e.g. educational, recreational and psychological facilities and services for minors);
• lack of effective separation between adults and minors, compounded by several cases of harassment against underage residents

To protect their client, the lawyers filed an application with the Court of Catanzaro in October 2023, requesting an urgent order under Article 700 of the Code of Civil Procedure to secure immediate transfer to a suitable facility. The hearing was scheduled for December 2023 but was subsequently postponed to July 2024.

Due to the lack of promptness in the national proceedings, on 1 December 2023 the applicant’s lawyers turned to the ECtHR, which ordered, as a precautionary measure under Article 39 of its Rules of Procedure, the transfer of the minor to a centre for unaccompanied minors, which was carried out the following day.

The Legal Issues Raised

The applicant claims that three of his rights protected by the ECHR were violated by the deprivation of liberty he suffered during his detention at the Sant’Anna centre, the lawfulness of which he was unable to challenge. Specifically, the right to liberty and security (Article 5, paragraphs 1, 2 and 4), the right not to be subjected to inhuman or degrading treatment (Article 3) and the right to an effective remedy (Article 13, read in conjunction with Article 3).

In its judgment, the Court examined and confirmed the admissibility of the three complaints and consequently ruled on the merits of the three alleged violations of the ECHR.

The Government contested the violations of Articles 3 and 13. With regard to the first, it argued that living conditions were generally adequate and that specific criteria had been established for minors, through an addendum to the C.A.R.A. management contract aimed at increasing staff numbers and the services provided. As regards the alleged violation of Article 13, it argued that the applicant had not properly made use of the interim measures guaranteed by Article 700 of the Code of Civil Procedure.

The Court’s Reasoning and Decision

Firstly, Article 5 is considered to be indisputably applicable, since even the Government did not dispute that a deprivation of liberty had taken place, but instead denied that domestic remedies had been exhausted. However, the Court took into account the fact that, despite H.D.’s recourse to the remedy proposed by the Government, it had taken first two and then six months for the national authority to set a hearing, despite the procedure set out in Article 700 of the Code of Civil Procedure and the seriousness of the situation complained of. It therefore concluded that he had exhausted domestic remedies “to the extent that they could be of use to him” when he applied for an interim measure from the ECtHR and deemed the application of Article 5 admissible.

It further observed that, as a minor detained in a reception centre for adults, his application under Article 5.4 was particularly urgent. It therefore held that the four months taken to examine a minor’s application under Article 700 of the Code of Civil Procedure did not comply with the requirement of prompt judicial review under Article 5.4. The Court therefore found that there had been a violation of the right to personal liberty and security, as protected by Article 5 of the ECHR. It found a violation of the first paragraph due to the detention without legal basis of a foreign minor with a residence permit in a centre for adults for five months, until the urgent measure ordered by the Court itself; of the second paragraph due to the failure to provide information on the reasons for the detention; and of the fourth paragraph due to the failure to decide ‘within a short time’ on the application under Article 700 of the Code of Civil Procedure, finding that the four-month delay was incompatible with the requirement of promptness established by the Convention.

Secondly, the Court, with regard to Article 3, as in previous similar cases, carefully examines the appropriateness of the conditions and the availability of suitable services, taking into account the age, vulnerability of the children and the duration of their stay. In particular, it observed that: the material conditions of the minors within the Sant’Anna Centre in terms of accommodation, sanitary facilities and daily routine did not differ from those provided to the adult population of the facility. It also underlined that not only were the services necessary for minors lacking, but there was also no effective separation between adults and the more than 200 minors; that the minors’ situation was exacerbated by the fact that they were unable to leave the centre, in breach of Article 5, and that the applicant was detained at the centre for more than five months. Finally, it considers the addendum produced by the Government to be insufficient, highlighting the inadequacy of services at the time of the applicant’s stay and stating that the Government has provided no evidence of the fact that the applicant was placed in conditions suitable for an unaccompanied minor neither that he was provided with the services required by his situation. Therefore, considering the conditions of detention to be inadequate given the age and vulnerability of the individual in his specific situation as an unaccompanied foreign minor, the Court concludes that H.D. was subjected to inhuman and degrading treatment during his unlawful detention at the S.A.R.A., in violation of Article 3 of the ECHR.

Thirdly, the Court examines the alleged violation of the right to an effective remedy (Article 13) read in conjunction with Article 3. It therefore emphasises that, in order for prisoners’ rights to be protected in accordance with Article 3 of the ECHR, both preventive mechanisms to end the violation  and reparatory ones to provide redress to victims must be guaranteed. Furthermore, depending on the case, preventive measures may concern only the prisoner concerned or include broader measures that resolve systemic problems of violations of prisoners’ rights, as in the case of overcrowding.

The Court recognises that in Italy, in cases of administrative detention of foreign nationals, this remedy consists of an application to the civil court for an urgent remedy under Article 700 of the Code of Civil Procedure, which the Constitutional Court has identified as a form of preventive, precautionary and protective safeguard (judgment no. 96/2025).

In particular, the judges examined whether this preventive measure was capable of bringing the alleged violation to an end and whether it was effective in the case in question. The Court concluded that, whilst a combination of preventive measures and civil remedies might be sufficient in other cases (e.g. precarious living conditions), in the case of a minor, whose placement in an adult reception centre and the resulting close contact with adults constitutes a violation. For the preventive measure to be effective, it should have ensured his transfer to a facility suitable for a minor and not merely improved living conditions in the centre. Furthermore, they emphasise that in the present case, this remedy proved ineffective in any event, due to the delay in dealing with the case.

The Court rejects the Government’s objection regarding the exhaustion of domestic remedies and concludes, in this part of the judgment, that the applicant had availed himself of the domestic remedies suggested by the Government to the extent that they could be of use to him and in the absence of further guidance from the latter regarding alternative procedural avenues.

The judgment therefore found a violation of Article 5 - Right to liberty and security (paragraphs 1, 2 and 4), Article 3 - Prohibition of Torture and Article 13 - Right to an effective remedy, read in conjunction with Article 3, on the grounds of a breach of the right to an effective remedy before a national court, aimed at putting an end to the violation of the right not to be subjected to inhuman or degrading treatment. Consequently, the Court ordered the Italian State to pay €6,500 in non-pecuniary damages and €4,000 in legal fees, out of the €30,000 claimed by the applicant.

Implications for the Italian Legal System

Of particular interest is the Court’s reasoning regarding delays in judicial review.

With regard to Article 5.4, it held that, in the present case, it was impossible for the applicant to challenge the lawfulness of his deprivation of liberty or to obtain an order for his release. Drawing on the precedent of Khlaifia and Others v. Italy, the Court reiterated that “the question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case”, but that “since the liberty of the individual is at stake, the State must ensure that the proceedings are conducted as quickly as possible”. Furthermore, it clarified that “where a decision to detain a person has been taken by non-judicial administrative authorities, rather than a court, the standard of “speediness” of judicial review under Article 5. 4 comes closer to the standard of “promptness” under Article 5.3”. Furthermore, it emphasised the need for “particular expedition and diligence are required on the part of the domestic courts in reviewing the lawfulness of their detention”. (par. 75-78, H.D. v. ITALY)

Some relevant case law

With regard to Article 5.1, the Court had held in J.A. and Others v. Italy (no. 21329/18) that this allows for the detention “in good faith” of asylum seekers or migrants before the state grants authorisation for entry, but entails the “freedom from arbitrariness” and must always take place in appropriate conditions and locations and “be closely connected to the purpose of preventing unauthorised entry of the person into the country”.

It had emphasised that such a measure “is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country, and that the length of the detention should not exceed that reasonably required for the purpose pursued”.

On that occasion, it had observed that the question of when that paragraph ceases to apply, following the granting of formal authorisation for entry or stay, will depend largely on national law, but also that if such procedures are not carried out with due diligence, they cease to comply with Article 5.1 (see Khlaifia and Others v. Italy, no. 16483/12, par. 90).

With specific reference to minors, the Court had already found, in several judgments, violations of Article 3 in cases where accompanied and unaccompanied minors were placed in migrant reception centres or, on occasion, in administrative detention centres (see Darboe and Camara, par. 170–73). In this regard, it had already examined “under Article 3, under Article 3, cases concerning accompanied or unaccompanied minors detained in separated areas of centres also intended for adults. In those cases, the Court has assessed the manner in which the separation from adults was effectively implemented” (par. 111, H.D. v. ITALY). (see A.M. and Others v. France, no. 24587/12, par.49–53; M.D. and A.D. v. France, no. 57035/18, par.57,67; and N.B. and Others v. France, no. 49775/20, par. 49).

In June 2024, the Committee of Ministers of the Council of Europe had reiterated its request to Italy to fully implement the judgment in J.A. and Others v. Italy (no. 21329/18), putting an end to the unlawful practices of the “hotspot” approach in the case of Lampedusa. The communication also referred, amongst cases similar to the Lampedusa hotspot, to the unlawful deprivation of liberty at the facility where H.D. was detained in Isola di Capo Rizzuto (KR).

The previous year, the same committee had issued a similar decision regarding the failure to comply with the judgment in Darboe and Camara v. Italy (no. 5797/17).

Conclusion

On this occasion, the European Court of Human Rights reaffirmed well-established principles that are, however, often disregarded in practice, such as the prohibition on restricting personal freedom without a legal basis.

According to Gian Luigi Gatta, this judgment represents “a warning to the Government regarding the organisation and management of migrant centres: all the more so since, as mentioned, in 2023 it became possible, albeit on an exceptional basis, to place minors in sections of centres for adults”. He emphasises that facilities housing unaccompanied minors must guarantee standards compatible with Article 3 of the ECHR; not only must they avoid “the conditions of degradation that are, unfortunately, well known and widespread in places of detention”, but they must also “ensure services and facilities suitable for minors”. It also notes that this should prompt a broader reflection on the structural and widespread “conditions in Italian prisons, which are often incompatible with the principle of humanity in the administration of punishment”.