Decisions

European Court of Human Rights December 15, 2016 ECHR 2016 (extracts)

Disposition Unanimously: violations of Article 5 §§ 1, 2 and 4; no violation of Article 3 on account of the conditions at the Contrada Imbriacola early reception and aid centre or on the ships Vincent and Audace; and a violation of Article 13 taken together with Article 3. By sixteen votes to one, no violation of Article 4 of Protocol No. 4 and no violation of Article 13 taken together with Article 4 of Protocol No. 4. By fifteen votes to two, EUR 2,500 to each applicant for non-pecuniary damage; unanimously, EUR 15,000 jointly for costs and expenses.

The applicants left Tunisia by boat on 16 and 17 September 2011, were intercepted by the Italian coastguard and taken to Lampedusa (paragraph 11). They were held at the early reception centre at Contrada Imbriacola until a revolt and fire on 20 September, then flown to Palermo on 22 September and held on the ships Vincent and Audace (paragraphs 14 and 15). On 27 and 29 September 2011 they were taken to Palermo airport and removed to Tunisia, after being received by the Tunisian consul before they boarded (paragraphs 17 and 18). The Grand Chamber held their confinement unlawful: “the applicants’ deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness” (paragraph 107). They had no remedy for the conditions in which they were held, because an appeal against the refusal-of-entry orders “would have served only to challenge the lawfulness of their removal” (paragraphs 270 and 271). It found no collective expulsion: “To sum up, the applicants underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion” (paragraph 254). It left open whether the April 2011 agreement between Italy and Tunisia, “which has not been made public”, could be regarded as a readmission agreement within the meaning of the Return Directive (paragraph 255).

Collective expulsion Detention Detention conditions Readmission agreement Effective remedy Article 3 ECHR Article 5 ECHR

Caution The applicants did not claim that they faced ill-treatment in Tunisia. The Court held that the lack of suspensive effect of an appeal against removal did not in itself breach Article 13 “where, as in the present case, the applicants do not allege that there is a real risk of a violation of the rights guaranteed by Articles 2 or 3 in the destination country” (paragraph 281). The Grand Chamber departed from the Chamber on the conditions at Contrada Imbriacola, on Article 4 of Protocol No. 4 and on Article 13 taken with it; it confirmed the Chamber on Article 5, on Article 13 taken with Article 3 and on the ships (concurring opinion of Judge Raimondi, paragraphs 1 and 2).