On 29 April 2025, the European Court of Human Rights (ECtHR) issued its decision in the case of Mansouri v. Italy (application no. 63386/16), concerning the lawfulness and circumstances of the applicant’s detention on board an Italian ship during the journey to return him to his country of origin following a refusal-of-entry order. The ECtHR has declared the applicant’s complaints under Article 5 (Right to liberty and security) of the European Convention of Human Rights (ECHR) as inadmissible and those under Article 3 (Prohibition of torture and other inhuman or degrading treatment) and Article 13 (Rigth to an effective remedy) as manifestly ill-founded

The facts of the case: Confinement on board and removal to Tunisia

The facts of the case stem from a refusal-of-entry order issued to the applicant by the Italian authorities at the Palermo maritime checkpoint. He was denied entry into Italy on the grounds that he did not hold a valid residence permit or visa. The applicant, a Tunisian national, had previously lived in Italy on a work permit from 2014 until its expiration in April 2016. He returned to Tunisia in January 2016, and in May of the same year, he was subjected to an identity check aboard the Italian cruise ship Splendid while heading back to Italy.

The claimant presented the border police with his passport, expired residence permit, and a copy of his long-term residence permit application submitted on 16 October 2015. The border police found that the competent Italian police headquarters (Questura) in Ferrara had rejected the residence permit application at the end of March 2016, and therefore concluded that Mansouri did not possess adequate authorisation to enter and stay in the country and issued him with a refusal-of-entry order in accordance with Article 10 § 1 of Italian Legislative Decree no. 286 of 1998 (Immigration Consolidated Act). The applicant alleged that during the trip back to Tunisia he had been confined in a cabin of the vessel, locked from the outside, under constant and strict supervision of the security officers on board. In the meantime, the ferry continued its route from Palermo to Civitavecchia, then to Termini Imerese and returned to the Tunisian port of La Goulette after six days.

The case before the Grand Chamber of the European Court of Human Rights

On 28 October 2016, the applicant filed a complaint with the ECtHR claiming the alleged violation of his human rights occurring during his six-days confinement in the vessel’s cabin.

He relied on Article 5 (Right to liberty and security) §§ 1, 2, 4 and 5 of the ECHR, holding that he was unlawfully deprived of freedom and that there was no domestic remedy to challenge the lawfulness of his detention before a national court. 

He also relied on Article 3 (Prohibition of inhuman and degrading treatment) of the ECHR, complaining about the material conditions of his stay on board the vessel for six days under the strict and constant supervision of the ship’s security officers. Ultimately, he complained about a lack of domestic remedy under Article 13 ECHR (Right to an effective remedy).

In February 2024, the Chamber relinquished jurisdiction in favour of the Grand Chamber under Article 30 ECHR (Relinquishment of Jurisdiction to the Grand Chamber). Such relinquishment occurs when a case raises a “serious question affecting the interpretation of the Convention or the Protocols” or “where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court.” This indicates that Mansouri v. Italy raised significant concerns about the Court’s jurisprudence on migration and the right to liberty and security (Article 5), as addressed in previous Grand Chamber cases.

The case was heard in Strasbourg on 18 September 2024 by the seventeen judges of the Grand Chamber of the ECtHR. During the hearing, the judges exceptionally granted both parties an additional eight-day deadline to submit further documentation. The Court issued its decision six months later, on 29 April 2025.

The inadmissibility decision

In its decision, the Grand Chamber declared the complaints under Article 5 inadmissible, due to the absence of exhaustion of domestic remedies, and found the complaints regarding Articles 3 and 13 manifestly ill-founded.

The ECtHR clarified the preliminary issue of establishing its jurisdiction over the complaint according to the provisions of the ECHR. The Italian Government held that the facts did not fall within its own jurisdiction because they took place in international waters and ended in the territory of another State. The Court found this irrelevant, relying on article 27 § 1 of the United Nations Convention on the Law of the Sea, given that the vessel on which the facts took place was owned by an Italian ship company, flying the Italian flag and under the control of a captain who exerted public powers. In fact, according to the ECtHR, the captain is endowed with public authority when accomplishing certain tasks, such as the pushing back of an alien. On the contrary, the Italian government claimed that the relationship between the captain and the applicant, as carrier and passenger, was of a private nature. The captain of the ferry was entrusted to enforce the refusal-of-entry order issued by the Italian authorities at the Palermo maritime borders pursuant to article 10 § 1 of the Immigration Consolidated Act  (Legislative Decree no. 286 of 1998) and the related provisions of the Schengen Borders Code. Therefore, the ECtHR recognised that the events related to the applicant’s complaints were attributable to Italy and “engage its responsibility under the Convention”, under Article 1 (Obligation to respect Human Rights) of the ECHR.

The most significant part of the Grand Chamber’s decision concerns Article 5 ECHR (Right to liberty and security). The Court found that the applicant had failed to exhaust the available and effective domestic remedies and had not enabled the national courts to “fulfil their fundamental role in the Convention protection system”, noting that the ECtHR functions as a subsidiary instance. The ECtHR found that, according to the admissibility criteria set by Article 35 ECHR (Admissibility Criteria), the complaints under Article 5 ECHR were inadmissible. First, had the applicant activated any proceeding before the national courts, those courts could have scrutinized the lawfulness of his detention (and the applicant could have potentially benefited from further factual and legal findings)and, eventually, if a violation was found, they could have decided for an appropriate compensation under Article 2043 of the Italian Civil Code (Compensation for unlawful acts). Moreover, the ECtHR noted that the applicant had direct contact with his family and lawyer. Therefore, he had access to effective legal assistance even during the journey back to Tunisia. The ECtHR also observed that the national judges could have had the opportunity to examine any interpretation issue regarding the Schengen Borders Code provisions, and possibly seek a preliminary ruling from the Court of Justice of the European Union. Finally, the ECtHR reiterated the centrality of the “established principle of international law” that recognises the State’s right to control entry, residence and removal of aliens. According to the Strasbourg judges, this principle must be viewed in the context of Italy’s front-line role in “handling the flow of migrants from certain regions of Africa and the Middle East” towards Europe.

With regard to the complaints relying on Article 3 ECHR (Prohibition of torture and inhuman or degrading treatment), the ECtHR found that the applicant’  “accomodation conditions” - referring to the material conditions his confinementon on board of the vessel - did not meet the “minimum level of severity” required to engage responsibility under Article 3 ECHR. Even if the applicant experienced frustration during the six-day journey, he was not particularly vulnerable in terms of age or health status, he had access to direct communication with the outside world, he was provided with food and water, and was not deprived of his personal belongings.

Comment. Italy’s practice of detaining migrants pending deportation disapproved by the ECtHR

The ECtHR dismissed the case on the grounds that the applicant had not taken the appropriate steps to enable national courts to decide on potential remedies according to the applicable rules and procedures available under Italian law. Indeed, the ECtHR clarified that its decision does not state that Italy did or did not violate the applicant’s right to liberty and security, but rather that the applicant failed to exhaust the Italian judicial remedies, as “the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to pursue that avenue of redress.” The role of the ECtHR is subsidiary, and the primary responsibility for the judicial protection of the rights enshrined in the ECHR shall be carried out by the national courts of each Contracting State. 

The decision should not be interpreted as suggesting that Italy serves as a model for managing immigration. The facts of the case Mansouri v. Italy, along with the current practices of detaining migrants in hotspots and CPRs (Centres of Permanence for Return, also known as Return Detention Centres) reflect a worrying tendency with respect to the rights to personal integrity, security and liberty, to be free from torture and other degrading treatments, and the right to seek asylum.

Indeed, Italy has been found responsible for the violation of Article 5 ECHR in other cases related to migrants’ confinements, whether on land or aboard ships.

In the case Khlaifia and Others v. Italy (Grand Chamber, 2016), the applicants, three Tunisian nationals, had been confined on board ships moored at the dock of Palermo in order to be repatriated to Tunisia after having reached Italy on makeshift boats. The  Court found no legal basis for their detention pending deportation. 

Moreover, in 2023 alone, the ECtHR found Italy responsible for having violated Article 5 ECHR for unlawfully confining migrants in the cases J. A. and Others v. Italy, M. A. v. Italy, A. T. and Others v. Italy, A. B. v. Italy, and A. S. v. Italy. These cases primarily concerned the issue of migrants' deprivation of liberty in the hotspot of Lampedusa to prevent unauthorised entry into the country. 

The jurisprudence of the ECtHR clearly indicates that Italy has significant steps to make to improve its human rights performance with regard to border control and the protection of the freedom and personal integrity of individuals seeking to cross its borders.

The Italian Constitution protects the right to seek asylum (Article 10) and personal liberty (Article 13), and it bears the international obligation under several conventions, including the ECHR, not to return individuals to non-safe third countries.