J.A. and Others v. Italy – Is the European Court of Human Rights turning its focus to maritime migrants?

Between 9 and 10 March 2023, around 1,350 migrants arrived on the island of Lampedusa (Italy) by boat after a dangerous crossing of the central Mediterranean Sea. These reports are nothing new. Lampedusa has been known in recent years for the inhuman conditions in its overcrowded ‘hotspot centres’ for migrants. More generally, the poor conditions of hotspots have been largely documented.

The case of J.A. and Others v. Italy deals with the inhuman conditions of the Lampedusa detention centre suffered by a group of migrants after being rescued at sea. The Chamber delivered its judgement on 30 March 2023 and upheld the human rights of migrants. Considering current arrivals in the island of Lampedusa, this case helps to shed light on the human rights-blindness of detention practices and subsequent collective expulsion of maritime migrants.

J.A. constitutes an important development in the ECtHR’s case law since the 2016 judgement of the Grand Chamber in the very similar case – factually and legally – of Khlaifia and Others v. Italy.  In this post, I comment on some of the key issues that the Court dealt with in its timely judgment by comparing the two cases.

Facts and Judgement

In October 2017, four Tunisian nationals – the applicants– departed from their country. After an emergency at sea, the migrants were rescued by an Italian ship which brought them to Lampedusa. Upon arrival, the applicants ‘submitted that they underwent a medical check-up’, received a flyer containing some information and underwent identification procedures. (para 5) They stayed at the centre for 10 days and described their conditions as ‘inhuman and degrading’ with very limited possibility to leave the facilities. (para 6) Eventually, the applicants were forcibly removed to Tunisia by airplane. (paras 7, 10-11)

The application was lodged with the Court in April 2018. The ECtHR considered the alleged violations of three separate Articles of the European Convention on Human Rights: Art 3 on the prohibition of torture and/or inhuman and degrading treatment, Art 5 on the prohibition of arbitrary deprivation of liberty and Art 4 of Protocol 4 to the Convention on the prohibition of collective expulsion of aliens. It found that Italy had violated all three Articles and ruled in favour of the applicants.

Inhuman and Degrading Treatment

Concerning Art 3, in J.A. the Court relied on several reports documenting the overall ‘critical material conditions of the Lampedusa hotspot’ and it noted that the centre was known for being overcrowded. (paras 61, 63) In particular, the Lampedusa hotspot ‘was conceived as a first reception centre for very short stays of maximum forty-eight hours’ – however, the applicants remained in the centre for 10 days. (paras 19, 66) Based on this logic, the Court found a violation of the prohibition of inhuman and degrading treatment. (para 67)

The reasoning of the Court in J.A. departs from the Grand Chamber’s arguments in Khlaifia. In 2016 the Court was asked to decide on the conditions of a Lampedusa centre where the applicants had been detained. (para 136) The applicants alleged that they had been subject to inhuman and degrading treatment. However, the Grand Chamber ruled that the conditions did ‘not exceed the level of severity’. (para 199) Thus, the Court found no breach of Art 3. (paras 170, 199-201, 210-211, see also M.S.S. v. Belgium and Greece and Tarakhel v. Switzerland).

Taking stock of the Khlaifia judgement, the length of the stay in the centre seems to be the key element in the Court’s renewed view in J.A. Both judgements found that the conditions of the detention centres were poor and overcrowded. Yet, in J.A. the Court found that the long stay of the applicants in the hotspot centre constituted a violation of the prohibition of inhuman and degrading treatment. In J.A., the Chamber also departed from the ‘vulnerability approach’, relied upon in Khlaifia. Therefore, J.A. clarifies – at least to an extent – the conditions required to meet an adequate standard of severity to find a breach of the Convention in cases of migrants’ detention.

Arbitrary Detention

The Court then focused on the applicants’ claim that they had been arbitrarily deprived of their liberty. In this regard, the Court assessed whether the detention of the applicants was to be considered lawful in order ‘to prevent his effecting an unauthorised entry into the country’. (para 84) The ECtHR recounted reports that the Lampedusa centre was described as ‘a closed area with bars, gates and metal fences that migrants are not allowed to leave’. (para 92) In light of the above, the Chamber found a breach of the ECHR. Moreover, it was decided that the applicants were not given enough information on the reasons why they were being detained and, in turn, could have not been able to challenge the decision to detain them. (para 98) Thus, the Court confirmed that there had been a violation of Art 5 §§ 1, 2 and 4 of the Convention.

This judgement upheld the reasoning in Khlaifia. In 2016, the Court found a violation of Art 5 § 1 since ‘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’. (para 107) Further, the Court found a breach of Art 5 § 2 and Art 5 § 4 as the applicants were not informed about the conditions of their own detention. (paras 121-122, 135)

In sum, the ECtHR upheld its previous ruling and recognised that hotspot centres are often over-used by governments in order to prevent migrants from reaching safe destinations. Moreover, this judgement enforces the argument that governments ought to justify why migrants are kept in border facilities without being given sufficient information on their conditions. The Court also importantly upheld that the dialectic of the ‘emergency’ used to ground decisions to effectively detain migrants in inhumane conditions is not acceptable anymore.

Collective Expulsion of Aliens

The Court considered the alleged violation of Art 4 of Protocol 4 to the ECHR which prohibits the collective expulsion of aliens. The applicants submitted that the removal orders had been shown to them too quickly, to prevent them from being able to fully understand the content of the orders, consent to the removal and potentially appeal. (paras 102-103) Relying on N.D. and N.T. v. Spain, the Court noted that the applicants were not interviewed by the authorities and the text of the orders of removal did not contain any information on their personal circumstances. (paras 107-108) The ECtHR also confirmed that Italy did not provide sufficient proof that the applicants had time to appeal to the removal orders due to the ‘the short lapse of time between the signature […] and their removal’. (para 113) As follows, the Court ruled that there had been a violation of Art 4. (para 116)

The Chamber’s ruling departs from Khlaifia where the Court ruled that the expulsion of the applicants was not ‘collective’; rather, it was ‘the outcome of a series of individual refusal-of-entry orders’. (para 252) In Khlaifia the applicants submitted that they could not undergo an individual interview. Yet, the Court noted that Art 4 ‘does not guarantee the right to an individual interview in all circumstances’. (para 248) Instead, ‘the applicants underwent identification on two occasions […] and they were afforded a genuine and effective possibility of submitting arguments against their expulsion’. (para 254) In conclusion, the Grand Chamber found no violation of Art 4.

Concerning the procedural guarantee entailed in Art 4 and the Khlaifia ruling, Venturi commented: ‘if the right to an individual interview is not provided for by Article 4 Protocol 4, how can a collective expulsion be effectively forestalled? Such interpretation restricts the scope of this provision inevitably’. The Chamber’s J.A. judgement seems to distance itself from the Khlaifia reasoning. Indeed, in J.A. the applicants submitted that no interview had taken place. (para 102) However, the ECtHR found that ‘the refusal-of-entry and removal orders issued in the applicants’ case did not have proper regard to their individual situations’. (para 115)

In essence, the Chamber does not overturn Khlaifia. However, the Court clarifies that at least two requirements must be met to avoid collective expulsion. First, migrants ought to be given enough time before signing their orders to at least benefit ‘from any concrete possibility of appealing against the measures’. (para 103) Second, an information sheet which is difficult to understand for migrants does not provide sufficient information on the orders. (paras 112-113) Although perhaps not fully satisfactory, the reasoning of the Court still constitutes a partial clarification in implementing the prohibition of collective expulsion of aliens.

Strasbourg turns to Lampedusa: Time for Clarity?

The J.A. judgement constitutes an important step towards enforcement of maritime migrants’ rights at the southern borders of Europe. Overall, the violations committed by Italy prompt a timely questioning of migratory management activities aimed to securitise and externalise border controls so far employed by EU authorities and Member States.

Beyond the substantive importance of the judgement, J.A. also constitutes an opportunity to evaluate the position of the ECtHR as a human rights judicial body vis-à-vis rights enforcement of maritime migrants. Over 10 years after the landmark judgement of Hirsi Jamaa and Others v. Italy, it can be argued that with J.A. the Court (re)positions itself as a key judicial body committed to the upholding of human rights of migrants both at sea and on land. However, it will be interesting to keep an eye on future developments. Concerning the ECtHR’s case law, the J.A. judgement could not be final as Italy may still request a referral to the Grand Chamber. (Arts 43 and 44) Moreover, the pending case of S.S. and Others v. Italy still awaits a final judgement. Will the Court follow the J.A. approach or will it fall back on previous ‘missed opportunities for justice’? Only time will tell.