EGMR

[...]

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION [...]

60. Although highlighting some positive aspects of the organisation at the facility, within a "hotspot approach" that has been developed starting from 2015 (see paragraphs 32 et seq.), the Government, for their part, did not dispute the abundant information submitted by the applicants with regard to the shortcomings of the material conditions of stay in the Lampedusa hotspot (i.e., the conditions of hygiene, the lack of space, and the features of accommodation – see paragraphs 52 and 53 above).

61. The Court also observes that multiple national and international sources have attested to the critical material conditions in the Lampedusa hotspot during the period of the material facts of the present case. [...]

64. In light of all of the above, the Court finds that the Government have failed to produce sufficient elements in support of their view that the individual conditions of stay of the applicants could be deemed to have been acceptable. Indeed, having regard to the elements listed above, submitted by the applicants, and supported by photographs and by several reports, the Court is satisfied that, at the time the applicants were placed there, the Lampedusa hotspot provided poor material conditions.

65. In this context, the Court also reiterates its well-established case-law to the effect that, having regard to the absolute character of Article 3, the difficulties deriving from the increased inflow of migrants and asylumseekers, in particular for States which form the external borders of the European Union, does not exonerate member States of the Council of Europe from their obligations under this provision [...].

67. In the light of the above, the Court dismisses the Government's objection as to the applicants' alleged lack of victim status and concludes that the applicants were subjected to inhuman and degrading treatment during their stay in the Lampedusa hotspot in violation of Article 3 of the Convention. [...]

80. Under sub-paragraphs (a) to (f) of Article 5 § 1, any deprivation of liberty must, in addition to falling within one of the exceptions set out therein, be "lawful". Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of "arbitrariness" in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (ibid., § 67). [...]

85. It now falls to the Court to determine whether the applicants' restriction of liberty within the meaning of the first limb of Article 5 § 1 (f) complied with the requirement of "lawfulness", and in particular whether it was based on the "substantive and procedural rules of national law" (see paragraph 80 above).

86. In this regard, the Court would first draw attention to the definition of "hotspot", as related in particular to their function. [...]

90. The Court cannot but note that while Decree-Law no. 13 identified the two types of existing facilities that were apt to serve as hotspots, the Government have not shown that the Italian regulatory framework, including EU rules that may be applicable, provides clear instructions concerning the detention of migrants in these facilities.

91. In this respect the Court has found no reference in the domestic law cited by the Government (see paragraph 74 above) to substantive and procedural aspects of detention or other measures entailing deprivation of liberty that could be implemented in respect of the migrants concerned in hotspots. Nor have the Government submitted any legal source stating that the Lampedusa hotspot was to be classified as a CIE (where migrants, under certain conditions, might be lawfully detained under domestic legislation – see paragraph 75 above).

92. In addition, reports of independent observers, most of which based on on-site visits, as well as of national and international organisations, unanimously describe the Lampedusa hotspot as a closed area with bars, gates and metal fences that migrants are not allowed to leave, even once they have been identified, thus subjecting them to a deprivation of liberty which is not regulated by law or subjected to judicial scrutiny. [...]

93. Under the Convention, the Court can accept that, at the moment of migrants' attempt to be admitted into the territory of a Contracting Party, a limitation of their freedom of movement in a hotspot may be justified – for a strictly necessary, limited period of time – for the purpose of identification, registration and interviewing with a view, once their status has been clarified, to their possible transfer to other facilities. In those circumstances, the detention, for instance, of asylum-seekers waiting for their request to be processed (under the first limb of Article 5 § 1 (f)) or the detention of irregular migrants in view of their removal (under the second limb of the same provision) is regulated by law (see paragraphs 27, 30, 31 and the relevant implementation measures above).

94. However, in the circumstances of the present case, the impossibility for the migrants to lawfully leave the closed area of the Lampedusa hotspot did not fall under any of the situations described above. The limitation on the applicants' freedom of movement clearly amounted to a deprivation of their personal liberty under Article 5 of the Convention, all the more so if one considers that the maximum duration of their stay in the crisis centre was not defined by any law or regulation and that, in addition, the material conditions of their stay have been deemed to be inhuman and degrading (see paragraph 67 above). [...]

97. In the light of the above considerations and bearing in mind that the applicants were placed at the Lampedusa hotspot by the Italian authorities and remained there for ten days without a clear and accessible legal basis and in the absence of a reasoned measure ordering their retention, before being removed to their country of origin, the Court finds that the applicants were arbitrarily deprived of their liberty, in breach of the first limb of Article 5 § 1 (f) of the Convention. [...]

IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION [...]

106. The Court reiterates that collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken following, and on the basis of, a reasonable and objective examination of the particular case of each individual alien of the group [...]. Moreover, Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances and the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion and where those arguments are examined in an appropriate manner by the authorities of the respondent State (see Khlaifia and Others, cited above, § 248).

107. In the present case, the applicants stated that no interview was held with the authorities before they signed the refusal-of-entry orders, of which they received no copy. The Court notes that the Government did not contest the information submitted by the applicants in this respect. [...]

109. The applicants were forcibly removed on the day the refusal-of-entry orders were served on them. Their wrists were bound with Velcro straps during the transfers to the airports and their mobile phones were taken away from them until their arrival in Tunisia. [...]

115. In these circumstances, the Court finds that the refusal-of-entry and removal orders issued in the applicants' case did not have proper regard to their individual situations [...].

116. Those decisions thus constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4 to the Convention and there has therefore also been a violation of that provision in the present case. [...]