EU pushbacks of migrants at sea ‘illegal’

The European Court of Human Rights in Strasbourg today issued a decision concluding that Italy violated the European Convention of Human Rights by intercepting and returning to Libya in 2009 a group of Somalis and Eritreans without examining whether this would constitute a real risk to their lives.

The case is known as Hirsi Jamaa and Others v. Italy.

The United Nations High Commission for Refugees said the judgment provided important guidance to European states in their border control and interception practices. "It's a turning point regarding state responsibilities and the management of mixed migration flows," the UNHCR, an intervener in the case, said.

"This case highlighted the obligation of states not to forcibly return people to countries where they face persecution or serious harm. This is known as the 'non-refoulement principle'."

In its submission to the Court, UNHCR underlined that given the situation prevailing in Libya at that time, pushback policies undermined access to protection and the principle of 'non-refoulement', which also applies on the high seas.

"UNHCR appreciates the challenges that irregular migration poses to Italy and other EU countries and acknowledges the significant efforts made by Italy and other states to save lives in their search and rescue operations."

However, the agency said people rescued or intercepted at sea were more vulnerable than other asylum-seekers, both physically and psychologically, and therefore unable to declare their intention to apply for asylum immediately after their interception at sea.

"UNHCR recommends that border control measures should provide for access to the territory of persons in need of international protection."

The case concerned Somalian and Eritrean migrants travelling from Libya who had been intercepted at sea by the Italian authorities and sent back to Libya. The Court held that Italy was to pay each applicant €15,000 in respect of non-pecuniary damage and €1,575.74 to the applicants jointly in respect of costs and expenses.

The applicants fell within the jurisdiction of Italy. The ECHR found two violations of Article 3 (prohibition of inhuman or degrading treatment) of the Convention because the applicants had been exposed to the risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea; a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsions); and a violation of Article 13 (right to an effective remedy).

The applicants are 11 Somalian and 13 Eritrean nationals, part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.

The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli, after a 10-hour voyage, they were handed over to the Libyan authorities.

At a press conference on 7 May 2009 the Italian Minister of the Interior said that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that had come into force on 4 February 2009, marking an important turning point in the fight against illegal immigration.

According to information submitted to the Court by the applicants’ representatives, two of the applicants had died in unknown circumstances. Between June and October 2009 fourteen of the applicants had been granted refugee status by the office of the UN High Commissioner for Refugees (UNHCR) in Tripoli. Following the revolution in Libya in February 2011 the quality of contact between the applicants and their representatives deteriorated.