The Contemporary Relevance of Khlaifia and others v. Italy

Guest post by Gennaro Santoro, specialist in immigration law, Italian Coalition for Civil Liberties and Rights (CILD). Founded in 2014, the Italian Coalition for Civil Liberties and Rights (Coalizione Italiana per le Libertà e i Diritti Civili, CILD) is a network of 41 civil society organizations. CILD aims to defend and promote civil liberties and rights guaranteed by the Italian Constitution and by international law, and to fight civil rights abuses and violations through advocacy, public education and legal action. This is the seventh instalment of the themed week on assessing border control practices in Italy.

The “hotspot approach” in Europe 

The “hotspot approach” in Europe, launched by the European Agenda in 2015, prompted the creation of facilities - so-called hotspots - for the initial reception, identification, registration and fingerprinting of asylum seekers and migrants arriving by sea to the external borders of the EU (Greece and Italy). The idea was to develop a system that could put an end to the Italian practice of not processing and identifying people after they had been rescued at sea or had landed on Italian shores. Often, people who had arrived in Italy continued their journey in order to reach other European states and seek asylum there.

In December 2015, the first hotspots opened in Italy, though with no specific legislation or legal amendments to regulate their operation (see here, page 39). Instead, the Italian Ministry of the Interior, with the support of theEuropean Commission, adopted the Standard Operating Procedures (SOPs) for hotspots to establish and run these facilities. According to the SOPs, one of the main objectives of hotspots was “the initial identification of vulnerable individuals”. 

In 2017, with a legislative decree proposed by the then Minister of the Interior Marco Minniti, the Italian Government finally passed legislation to regulate hotspots and their operation. According to Law 46/2017, hotspots were identified as sites where people were provided first aid and where administrative procedures such as international protection or return were initiated. The people held at these sites were categorised as either: 1) vulnerable individuals, thus liable to be admitted into the country; or 2) economic migrants to be expelled and repatriated. 

While any measure aimed at identifying (and supporting) vulnerable people should be considered a positive development in promoting social justice and upholding rights, the reality is more complex. Behind the alleged purpose of the identification of vulnerable individuals lies a mechanism of informal and widespread deprivation of liberty. This practice violates Article 13 of the Italian Constitution and Article 5 of the European Convention on Human Rights (ECHR), which stipulate that every person has the right to liberty and security. The individuals who end up in Italian hotspots, including those who should be classified as “vulnerable” (e.g. unaccompanied minors, victims of trafficking) are held without a court order or judicial review of their case, and receive no information on how to access legal aid. Many are eventually classified as “irregular economic migrants” rather than as “vulnerable individuals” and are thus exposed to expulsion and deportation.

Hotspots in Italy: the implementation of the judgment in the case of Khlaifia and others v. Italy

The case of Khlaifia and others v. Italy concerns three Tunisian citizens who were held in the early reception and aid centre (Centro di Primo Soccorso e Accoglienza - CPSA) of Contrada Imbriacola in Lampedusa in 2011. They were later transferred to the Vincent and Audacia military ships anchored in the port of Palermo and held while awaiting deportation to Tunisia.

The Grand Chamber of the European Court of Human Rights, in its Judgment on December 15, 2016, found that:

-        The applicants’ deprivation of liberty had no clear and applicable legal basis in Italian law and, accordingly, the legal and factual grounds for their deprivation of liberty had not been promptly notified to the applicants (i.e., the three Tunisian citizens). Since the applicants had not been informed of the reasons for their deprivation of liberty, they were also effectively deprived of their right to have its lawfulness decided. Put simply, the Italian legal system had not offered the applicants the possibility to obtain a judicial review of the lawfulness of the measure applied to them (a violation of Articles 5 §§ 1, 2 and 4 of the ECHR); and

-        There was no avenue for the applicants to complain about the conditions of their reception in the Contrada Imbriacola centre (a violation of Article 13 and Article 3 of the ECHR).

On September 11, 2017 and January 12, 2018 the Italian Government sent two Action Plans to the Committee of Ministers indicating the measures adopted to prevent future violations pertinent to this decision. In March 2018 the Committee of Ministers asked the Italian Government to provide additional information regarding legal provisions on the operation of hotspots, the average length of confinement before and after the formal process of identification, freedom of movement after the process, and available legal remedies. 

In July 2018 CILD and ASGI, as part of the In Limine project (see also the blog post of Annapaola Ammirati, Lucia Gennari and Adelaide Massimi in this thematic series), sent a joint Rule 9.2 Communication highlighting the lack of legal basis for the operation of hotspots and the violation of foreign nationals’ rights. Their claims were based on data compiled on, and observations collected at the hotspot in Lampedusa. 

In September 2018, the Italian Government responded to the requests made by the Committee of Ministers claiming that the hotspot approach has a legal basis in Article 17 of legislative decree 13/2017, later converted into Law 46/2017. They cited Article 10 of the Italian Immigration Act (legislative decree No. 286/1998), which was introduced in 2017 to provide a legal basis for holding migrants in initial reception centres (such as CPSAs or hotspots). 

In February 2019 the Italian government submitted an Action Report to the Committee of Ministers on the status of implementation of this judgment, calling on the Committee to close this case. Nevertheless, the Committee of Ministers asked the Italian Government to provide further information on the Italian legislative framework on hotspots, the scope of the judicial review of the decisions to detain asylum seekers in such centres, and the avenues available for detainees to complain about the conditions of their detention and seek appropriate redress. 

The recent security decree issued in October 2018  

The legislative measures introduced by the last legislative decree on security, issued in October 2018 by the former Interior Minister Matteo Salvini, and later converted into law 132/2018, cause further concern. The new law provides that foreign nationals who are subject to forced return can be temporarily detained in administrative detention centers, currently named Centri di Permanenza per i Rimpatri (CPRs), and in so-called ‘suitable places’ and ‘suitable structures’. This change has been criticised as it leads to arbitrary detention without any procedural guarantees, and a lack of clarity regarding the definition of a ‘suitable place’ for detaining irregular foreign nationals. 

Salvini’s law enables the detention of asylum seekers in hotspots. This detention can be up to 30 days and needs to be validated by a judge within 48 hours. CILD and other human rights organisations have expressed serious concerns regarding this legislative change. These concerns are exacerbated by the fact that, based on on-site visits, we know that hotspots are sites where fundamental rights and jurisdictional guarantees are systematically violated. The main problem is that the Salvini decree only apparently introduces a judicial procedure for asylum seekers held in hotspots. In practice, asylum seekers often cannot resort to this procedure since they are often not registered as applicants for international protection despite having expressed their willingness to seek asylum.

We argue that this legislative reform does not actually address the issues raised by the ECHR within the Khlaifiajudgement, specifically their concerns regarding the existence of a legal basis for people’s confinement and the availability of effective appeal procedures to contest the lawfulness and conditions of confinement. In hotspots and detention centres (CPRs) people are euphemistically referred to as ‘guests’ and not ‘detainees’, despite the fact that they are not free to leave the centre at will and are therefore clearly deprived of their liberty.  

Hotspots, thus, are waiting rooms of sorts, where people are deprived of their freedom of movement until the process of identification and selection is completed (which arbitrarily differentiates ‘economic migrants’ from ‘asylum seekers’ - see the recent Report by the Italian Ombudsman). What matters is the de facto conditions in which the coercive power of the state is expressed over individuals (see Austin and others vs. UK, G.C15.3.2012 and Khlaifia).

The implementation of the judgment in the Khlaifia case cannot take place without clarifying, via the law, that hotspots are sites of de facto detention where a judicial review, on case-by-case basis, is essential. Furthermore, ad hoc mechanisms to monitor the lawfulness and conditions of detention in these sites (as well as in CPRs) should be introduced - similar to those that already exist in prisons. In our view, this is the only possible way to challenge the legitimacy of migrants’ arbitrary confinement and its conditions, as requested by the ECHR in the Khlaifia judgment.

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How to cite this blog post (Harvard style) 

Santoro, G. (2020). The Contemporary Relevance of Khlaifia and others v. Italy. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/02/contemporary [date])