Information Note on the Court’s case-law 188
August-September 2015
Khlaifia and Others v. Italy - 16483/12
Judgment 1.9.2015 [Section II]
Article 4 of Protocol No. 4
Prohibition of collective expulsion of aliens
Collective expulsion of migrants to Tunisia: violation
Article 13
Effective remedy
Lack of suspensive effect of remedy for collective expulsions: violation
[This case was referred to the Grand Chamber on 1 February 2016]
Facts – In September 2011 the applicants departed from Tunisia together with other persons aboard makeshift vessels with a view to reaching the Italian coast. After several hours at sea the boats were intercepted by the Italian coastguards, who escorted them to the port of the island of Lampedusa. The applicants were placed in a reception centre. This centre was subsequently destroyed following a riot, and they were transferred to ships moored in Palermo harbour. The Tunisian Consul registered their civil status details. Expulsion orders were issued against the applicants, who denied ever having been served with the corresponding documents. They were then taken to Tunis airport, where they were released.
Law – Article 4 of Protocol No. 4: individual expulsion orders were issued against the applicants. However, these orders were identically worded, the only differences being the personal data of the addressees. Nevertheless, the mere fact of implementing an identification procedure is insufficient to preclude the existence of collective expulsion. Moreover, several factors suggest that in this case the expulsion complained of had in fact been collective in nature. In particular, the expulsion orders did not refer to the personal situations of the persons concerned; the Government produced no documents capable of proving that the individual interviews concerning the specific situation of each applicant had taken place before the adoption of the orders; at the material time, a large number of persons of the same origin were dealt with in the same manner as the applicants; the bilateral agreements with Tunisia were not made public, and provided for the repatriation of illegal Tunisian migrants under simplified procedures, based on the simple identification of the person in question by the Tunisian consular authorities. The foregoing is sufficient to exclude the existence of adequate guaranties on genuine, differentiated consideration of the individual situation of each of the persons concerned.
Conclusion: violation (five votes to two).
Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4: inasmuch as the applicants complained of the lack of an effective remedy to challenge their expulsion on the grounds of its collective nature, it was not established that such a complaint could not have been the subject of an appeal to a magistrate against the expulsion orders. It transpired from the magistrate’s decisions produced by the Government that the magistrate had examined the procedure for the adoption of the impugned expulsion orders and had assessed their lawfulness in the light of domestic and constitutional law. There was nothing to suggest that a possible complaint concerning the failure to take into consideration the personal situations of the applicants would have been ignored by the magistrate.
However, the orders had explicitly stated that the lodging of the aforementioned appeal with the magistrate in any case lacked suspensive effect. It follows that such an appeal did not satisfy the requirements of Article 13 of the Convention in so far as it failed to meet the criterion regarding suspensive effect set out in De Souza Ribeiro. The requirement imposed by Article 13 to stay the execution of the impugned measure cannot be considered as merely secondary.
Conclusion: violation (five votes to two).
The Court also found a violation of Article 5 §§ 1, 2 and 4, of Article 3 (concerning the conditions in which the applicants were held in the reception centre) and of Article 13 in conjunction with Article 3. It found no violation of Article 3 regarding the conditions of accommodation aboard the ships.
Article 41: EUR 10,000 each in respect of non-pecuniary damage.
(See De Souza Ribeiro v. France [GC], 22689/07, 13 December 2012, Information Note 158; see also the Factsheet on Collective expulsions of aliens)
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This summary by the Registry does not bind the Court.
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