‘Push-back of irregular migrants intercepted on high seas a violation of human rights’: ECHR



Italy condemned over push-back operations at high seas by the European Court of Human Rights. Landmark judgement.

Refugees attempting to escape Africa do not claim a right of admission to Europe. They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease closing its doors to people in despair who have fled from arbitrariness and brutality. That is a very modest plea, vindicated by the European Convention on Human Rights. “We should not close our ears to it.”

On the strength of this, the European Court of Human Rights has ruled yesterday in a landmark judgement that the push-back actions (refoulement) carried out by the Italian government against Lybian refugees have violated human rights. They amounted to a collective expulsion of aliens, which exposed them to the risk of mistreatment and torture.

This is the final judgment of the Grand Chamber of European Court of Human Rights on the Hirsi case ( Hirsi Jama and others v. Italy).

The Hirsi case is about the international protection of refugees, on the one hand, and the compatibility of immigration and border control policies with international law, on the other hand.

The ultimate question in this case is how Europe should recognise that refugees have “the right to have rights”, to quote Hannah Arendt," commented Judge Pinto de Albuquerque.

The complaint was lodged by 11 Somali and 13 Eritrean nationals, represented by lawyers Anton Giulio Lana and Andrew Saccucci of the Forensic Union for Human Rights.

The applicants were part of a group of about two hundred people who left Libya aboard three vessels with the aim of reaching the Italian coast and were intercepted on May 6, 2009, 35 miles south of Lampedusa, that is, within the Maltese Search and Rescue Region of responsibility, by three ships from the Italian Revenue Police (Guardia di finanza) and the Coastguard.

The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The Italian authorities allegedly did not inform them of their real destination and took no steps to identify them.

On arrival in the Port of Tripoli, they were handed over to the Libyan authorities: they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships.

The Court held that the expulsions carried out by the Italian authorities were contrary to the principle of non-refoulement, which prohibits the expulsion to a country where there is a risk of being subject to torture or inhuman and degrading treatment and punishment (Article 3 of the ECHR) . They then violated Article 4 of Protocol No. 4 to the Convention which prohibits collective expulsion of foreigners and Art. 13, which guarantees the right to an effective remedy.

The Court concluded that the Italian authorities, when they pushed the migrants back to Libya, have exposed them to ill-treatment. Even before the war, in fact, Libya could not be considered a safe country, as many observers denounced, including the UN High Commissioner for Refugees. Italy also knew (or should have known) that those people also risked being deported from Libya to Somalia and Eritrea, countries where they risked torture.

The judges also condemned the fact that the individual situation of each migrant had not been examined by the Italian authorities before the expulsion: the migrants were loaded onto navy ships and disembarked in Tripoli without any identification procedure. It amounted to a collective expulsion of foreigners, a prohibited practice even if it occurred on the high seas, thus outside Italian borders.

The Italian government acknowledged that it was not possible to examine the personal situation of the migrants while they were onboard the Navy ships. The applicants were not informed that they were being brought to Libya and had no possibility of suspending the implementation of the expulsion measure. A further violation of their rights, ruled the Court, which has also condemned Italy to compensate by paying 15 thousand euros to each of the applicants and to carry the legal fees.



"In this case it was not a mere risk of inhuman and degrading treatment in Libya; the applicants have actually suffered such treatment in detention camps, as dramatically demonstrated by the survivors," said Anton Giulio Lana of the Forensic Union for Human Rights (Unione Forense per i Diritti Umani). His colleague Andrea Saccucci added: "What is worse is that the Italian government has publicly stated that the migrants they pushed back were not among the persons entitled to asylum and were in no danger in Libya, a statement blatantly contradicted by the facts," as that one of the applicants later returned to Italy and obtained refugee status.

Christopher Hein, Director of the Italian Council for Refugees commented, " This judgement proves that in push-back operations the rights of refugees have been systematically violated, Italy has in fact denied the opportunity to seek protection and has thus returned to Libya more than a thousand people who had the right to be accepted in Italy.

"We want this message to arrive unambiguously to the Monti Government: when renewing cooperation agreements with the Libyan Transitional Government, the rights of refugees cannot be negotiated. On this issue, we expect the new government to take clearer and stronger positions than those we have heard in recent weeks."

Laura Boldrini, spokeswoman in Italy for the UN High Commissioner for Refugees, speaks of "a judgment of historic proportions".

"This judgment provides important guidance to European states on future policies. The great challenge is to combine security needs with the protection of fundamental human rights. We hope that this judgment leads Italy to reconsider the practice of rejections and give a clear signal of discontinuity that so far was failing".

The Italian Minister of Cooperation and Integration Andrea Riccardi said the ruling "requires us to rethink our immigration policies," and reiterates the need to combat illegal immigration with "transparency, fairness and respect for human rights." The same standards , Mr. Riccardi adds, "we asked Libya to respect. "

"We will not ask Libya," he said , "to do something wrong because we cannot do it."


The Northern League's Roberto Maroni, who was Interior Minister at the time speaks of "a political judgment, another blow to a system that seeks security and protection against illegal immigration". His fear is that this decision, together with the debates on the right to ius soli nationality, can be read as a signal: "come, nobody will send you back. "

"I'd do exactly what I did again," he added, "that is preventing barges to leave Libya, saving many lives by forestalling sea voyages and ensuring public safety to our citizens."

"The impression is that in Strasbourg only abstract principles are regarded," said the leader of Mr. Berlusconi's party (PDL) in the Senate, Maurizio Gasparri, according to whom "border security is not a problem that concerns only Italy, but all the European Union".

"The Berlusconi government had implemented the policy of rejections based on specific agreements with Libya and in line with the international law. The Union, should rather give us a hand because we can no longer allow our shores to be invaded by new waves of immigrants. Nor slave traders to continue their shameful activities under the guilty silence of the 'international'community."

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