Printer Friendly

Collective expulsion of aliens: the European Court of Human Rights (Strasbourg) as the island of hope in stormy times?

I. Introduction

The European Court of Human Rights (hereafter: "ECtHR" or "Court") was established as a reaction to the atrocities committed in World War II. It decides the cases on the basis of the European Convention on Human Rights (hereafter: "ECHR"), adopted on 4 November 1950, (1) and has become over the decades the key player in the protection of human rights in Europe. It is sometimes referred to as the "Conscience of Europe" (2), an institution established by States which are, as the Preamble of the ECHR expresses, "likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law". Forty seven (47) Member States of the Council of Europe, the mother organization of the Court, are currently under its jurisdiction. (3)

One of the cornerstones of the ECHR system is the right to individual application within the meaning of Article 34, according to which individuals can seek redress before the Court for violations of the rights set forth in the ECHR or the protocols thereto. (4) This direct access to an independent judicial body that is entitled to examine allegations of human rights abuses is unique in the world. Another reason for the Court's efficiency are the interim measures that the Court can impose on States Parties pending the resolution of a case in Strasbourg, in conformity with Rule 39 of the Rules of the Court. (5) This tool is almost exclusively applied in cases of expulsion or extradition and, therefore, very relevant in the cases examined in the present contribution. (6)

Expulsion and extradition cases are among the most important and most frequent cases of the Court. Traditionally, the key provisions in situations of expulsion and extradition have been Articles 3 (prohibition of inhuman and degrading treatment) and 8 (respect for private and family life). The former protects foreign individuals, in particular asylum seekers, against their return to a State where they face a real risk of torture or ill-treatment. One of the landmark judgments was Soering v. the United Kingdom1 in which the applicant, a German national, was facing extradition from the United Kingdom to the United States for charges of murder. In the Court's view, having regard to the very long period of time spent on death row in [such] extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, the applicant's extradition to the US would have exposed him to a real risk of treatment going beyond the threshold set by Article 3. (8) The underlying logic of Article 8 in expulsion and extradition cases is to protect a foreign applicant against removal when he maintains family ties in the country of residence. (9) In addition, particular guaranties applicable exclusively in situations of removal of individuals from a State, but less important in practice than Articles 3 and 8, are Article 3 of Protocol No. 4 (Prohibition of expulsion of nationals) and Article 1 of Protocol No. 7 (Procedural safeguards relating to expulsion of aliens). It is important to mention that these protocols are far from being ratified by all the Member States of the Council of Europe. (10)

The provision which will be examined in more detail in the present contribution is Article 4 of Protocol No. 4, protecting aliens against collective expulsion. Protocol No. 4 having been adopted already in 1963, (11) the ECHR has found the first breach of this guarantee only in 2002, in the case of Eonka v. Belgium, that will be examined below. (12) More recently, this provision has been invoked more often and the Court has concluded on several occasions that a State Party had committed collective expulsions in breach of Article 4 of Protocol No. 4. (13)

The first chapter (I) will briefly explore the definition of "collective expulsion," its legal basis (Article 4 of Protocol No. 4) and summarize the preparatory work thereto. In the second chapter (II), the cases in which the ECtHR had to deal with traditional situations of collective expulsion will be examined. The third chapter (III) will explain the extension of the scope of Article 4 of Protocol No. 4 operated by the Court through its "effective" and "dynamic" interpretation in more recent cases. As a matter of fact, only thanks to this normative extension of this provision the ECtHR is able to deal with most of the recent cases involving mass migration, in particular asylum seekers and refugees arriving in Europe by sea. At the end of the section, a case that is currently pending before the Grand Chamber of the ECtHR will be summarized. The contribution will be wrapped up with some final observations.

II. THE PREPARATORY WORK AND THE FIRST CASE DECIDED BY THE FORMER COMMISSION

The text initially proposed by the Consultative Assembly contained no reference to collective expulsion and dedicated Article 4 to the individual expulsions of aliens "lawfully residing in the territory of a High Contracting Party." (14) The Committee of Governmental Experts with instructions to study problems relating to the ECHR, in examining this draft from the Assembly, confirmed its intention to insert in the Protocol "a provision prohibiting the arbitrary expulsion of aliens." (15) Moreover, it inserted the prohibition of collective expulsion in Paragraph 3 of Article 4, which was initially worded as follows:

"Decisions of expulsion shall only be taken in individual cases; collective expulsion shall not, in any circumstances, be permitted." (16)

In the final version of Article 4, the part dealing with the guarantees against individual expulsions was removed and only the paragraph prohibiting collective expulsions remained: (17) "Collective expulsion is prohibited." (18)

The provision concerning individual expulsions was subsequently taken up in Article 1 of Protocol No. 7, which reproduces in substance the same text initially proposed in the original draft of Article 4 of Protocol No. 4. (19) The remaining text of Article 4 of Protocol No. 4 is extremely short, maybe the shortest provision in the ECHR and the Protocols thereto. Moreover, it is safe to say that it derives from the wording of this provision that it embodies an absolute guarantee which is not subjected to restrictions, similar to Article 3 of the ECHR that prohibits inhuman and degrading treatment or punishment, including torture, in absolute terms. (20)

As far as the term "expulsion" is concerned, the drafting history of Article 4 of Protocol No. 4 does not provide for clarification. The commentary on Article 3 of Protocol No. 4 (prohibition of expulsion of nationals, by means either of an individual or a collective measure), however, refers to this concept. Even though it was recognized that in its normal technical use, the term applied only to aliens, it was preferred to the word "exile," which could give rise to various problems of interpretation. According to the Committee of Experts, "the word 'expulsion' is to be taken here in the generic meaning, in current use (to drive away from a place)." (21)

As has been pointed out above, until very recently the claims involving collective expulsion of aliens have all been declared inadmissible by the Court and before, by the former European Commission of Human Rights (hereafter: "Commission"). (22) The first decision in this domain dates back to 1975. It is noteworthy because the Commission gave a definition of "collective expulsion" that is still applied by the Court today:
   'Collective expulsion of aliens' means any measure of the competent
   authority compelling aliens as a group to leave the country, except
   where such a measure is taken after and on the basis of a
   reasonable and objective examination of the particular cases of
   each individual alien of the group. (23)


This case was filed by a citizen of the Federal Republic of Germany, the director of "Project Children's Protection and Security International (CPSI)." He claimed that the envisaged repatriation of 199 Vietnamese children who have been received on the Danish island of Liv0 would amount to a breach of the prohibition of collective expulsion. (24) The Commission came to the conclusion that, since the respondent Government had allowed each case to be examined individually, no issue of collective expulsion arose. (25)

To sum up this section, it can be observed that the preparatory work on Article 4 of Protocol No. 4 reveals the close link that exists between the prohibition of collective expulsion of aliens on the one hand, and the need for procedural safeguards and legitimate reasons that justify the individual expulsions of lawful resident aliens, on the other hand.

III. THE SITUATIONS AS CONCEIVED BY THE DRAFTERS OF ARTICLE 4 OF PROTOCOL NO. 4: THE COLLECTIVE EXPULSION OF ALIENS RESIDING LAWFULLY ON THE TERRITORY OF THE HOST STATE.

Whereas a series of other cases has been declared inadmissible by the former Commission, (26) it was only in 2002 that the Court found a case well-founded under Article 4 of Protocol No. 4. It will be detailed in this section.

A. Eonka v Belgium

The first case in which the Court found a breach of the prohibition of collective expulsion was Eonka v. Belgium, delivered on 5th February 2002. (27)

1. Facts

The applicants were four Slovakian nationals of Romany origin, claiming that they had fled from Slovakia where they had allegedly been subjected to racist assaults by skinheads with the police refusing to intervene. (28) In November 1998 they arrived in Belgium, where they requested political asylum. (29) "On 3 March 1999 their applications for asylum were declared inadmissible." The decisions were accompanied by "an order to leave the territory within five days." (30) On 18 June 1999 the Commissioner-General's Office upheld the decision "refusing the applicants permission to remain" and stated that time had begun to run again for the purposes of the five-day time-limit. (31)

"At the end of September 1999, the Ghent police sent a notice" to a large number of Slovakian Roma, including the four applicants, "requiring them to attend the police station on 1 October 1999." (32) The notice stated that their attendance was required to enable the files concerning their applications for asylum to be completed. At the police station "the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and for their detention for that purpose." (33) The document, which was in identical terms for everyone concerned, "informed the recipients that they could apply to the Conseil d' Etat for judicial review of the deportation order and for a stay of execution" and to the indictment division of the criminal court against the order for their detention. A Slovakian-speaking interpreter was present at the police station. (34) "A few hours later the applicants and other Roma[ny] families ... were taken to a closed transit centre." (35) "At 10.30 p.m. on 1 October 1999, the applicants' counsel... was informed that his clients were in custody." (36) He contacted the Aliens Office, requesting that "no action be taken to deport them, as they had to take care of a member of their family who was in hospital." However, he "did not appeal against the deportation or detention orders made" in September 1999. (37) On 5 October 1999, the families were taken to a military airport and put on an aircraft bound for Slovakia. (38) On 28 October 1999, the applicants' applications for judicial review and a stay of execution of the decision of 18 June 1999 were struck out of the Conseil d'Etats list. (39)

2. Law (Article 4 of Protocol No. 4)

In view of the large number of persons of the same origin who had suffered the same fate as the applicants, the procedure followed raised the question of collective expulsion. (40) In its exam, the Court took into account a series of factors, such as: "prior to the applicants' deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation;" moreover, "all the aliens concerned had been required to attend the police station at the same time;" "the orders served on them requiring them to leave the territory and for their arrest [had been] couched in identical terms;" it had been very difficult for the aliens to contact a lawyer, and, "lastly, the asylum procedure had not been completed." (41) The Court also observed that ultimately, "at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion, [had] the procedure afforded sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account." (42) For these reasons, the ECtHR held by a majority of 4 votes against 3, that there had been a breach of Article 4 of Protocol No. 4. (43)

3. Other Violations

Apart from the alleged violation of the prohibition of collective expulsion, the Court had to deal with complaints based on Article 5 of the Convention (Right to freedom and security). It came to the conclusion that the arrest of the applicants at Ghent police station on 1st October 1999 entailed a breach of Article 5 [section] 1, according to which "[e]veryone has the right to liberty and security of persons (...)" (44) The Court was also of the opinion that there had been a violation of Article 5 [section] 4, which provides that "[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." (45) Moreover, the Court concluded that the applicants had not had a remedy available that satisfied the requirements of Article 13 to air their complaint under Article 4 of Protocol No. 4. Accordingly, there has been a violation of this provision also (46)

4. Just Satisfaction

Under Article 41 of the ECHR, (47) the Court decided that the respondent State had to pay to the applicants 10,000 EUR in respect of non-pecuniary damage which they had sustained as a result of the violations. (48) It also awarded them 9,000 EUR in respect of costs and expenses. (49)

5. Observations

The Eonka case is significant insofar as the ECtHR pronounced for the first time a violation of the prohibition of collective expulsion enshrined in Article 4 of Protocol No. 4. This finding becomes even more significant when considered in combination with the other breaches of the ECHR. The Roma population has to bear a lot of stereotypes, racism and violence in Europe and the ECtHR had criticized member States of the Council of Europe for discriminating the Roma population many times and in very different areas, such as education, (50) reproductive rights, (51) housing, (52) and even for violating the right to life. (53) The judgment is important and its reasoning convincing, but it would have been interesting to examine, in light of the problems mentioned, whether Belgium has been in breach of the prohibition of discrimination within the meaning of Article 14 of the ECHR. (54) In the absence of such an allegation, the Court does normally not raise an issue of its own motion, even though in the instant case, it is not excluded to suspect that the four applications were expelled collectively from Belgium, without being granted the individual examination of their claims, exactly for their Roma origin.

B. Georgia v. Russia (No. 1)

The second case that falls into the traditional approach to Article 4 of Protocol No. 4 is Georgia v. Russia (No. I). (55) This case is special since it concerns an inter-State application within the meaning of Article 33 of the ECHR. (56) The ECtHR has had to deal only twice with this type of application before this case. (57) From this author's point of view, inter-State cases should be avoided since the danger that this mechanism is abused for political purposes is considerable. In the instant case, the ECtHR rendered its judgment in July 2014, finding several violations of the ECHR on behalf of Russia.

1. Facts

The case concerns the arrest, detention and expulsion from Russia of large numbers of Georgian nationals from the end of September 2006 to the end of January 2007. (58) The facts of the case are extremely complicated and disputed between the parties. According to the Georgian Government, during that period more than 4,600 expulsion orders were issued by the Russian authorities against Georgian nationals, of whom more than 2,300 were detained and forcibly expelled, while the remainder left by their own means. (59) This represented a sharp increase in the number of expulsions of Georgian nationals per month. (60)

In support of their allegations that the increase in expulsions was the consequence of a policy specifically targeting Georgian nationals, the Georgian Government submitted a number of documents that had been issued in early and mid-October 2006 by the Russian authorities. (61) These documents, which referred to two administrative circulars issued in late September 2006, purportedly ordered staff to take large-scale measures to identify Georgian citizens unlawfully residing in Russia, with a view to their detention and deportation. (62) The Georgian Government also submitted two letters from Russian regional authorities that had been sent to schools in early October 2006 asking for Georgian pupils to be identified. (63)

The Russian Government denied these allegations. They said they had simply been enforcing immigration policy and had not taken reprisal measures. (64) In regards to the number of expulsions, they only kept annual or half-yearly statistics that showed about 4,000 administrative expulsion orders against Georgian nationals in 2006 and about 2,800 between 1 October 2006 and 1 April 2007. (65) As to the documents referred to by the Georgian Government, the Russian Government maintained that they had been falsified. (66) While confirming the existence of the two circulars, they disputed their content while at the same time refusing--on the grounds that they were classified "State secret"--to disclose them to the ECtHR. (67) They did not dispute that letters had been sent to schools with the aim of identifying Georgian pupils, but said this had been an act of over-zealous officials who had subsequently been reprimanded. (68)

Various international governmental and non-governmental organizations, including the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE), reported in 2007 on the expulsions of Georgian nationals, pointing to coordinated action between the Russian administrative and judicial authorities. (69)

2. Law (Article 38 ECHR)

It is noteworthy that the Court, before examining the actual complaints of the substantive provisions of the ECHR, had to deal with Article 38 ECHR, which is worded as follows: "The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities." (70)

As mentioned above, the Russian Government had refused to provide the Court with copies of two circulars issued by the authorities at the end of September 2006 on the grounds that they were classified materials whose disclosure was forbidden under Russian law. The Court had already found in a series of previous cases relating to documents classified "State secret" that respondent Governments could not rely on provisions of national law to justify a refusal to comply with a Court request to provide evidence. (71) Moreover, the Russian Government had failed to give a specific explanation for the secrecy of the circulars and, even assuming legitimate security interests for not disclosing the circulars existed, possibilities existed under Rule 33 [section] 2 of the Rules of Court to limit public access to disclosed documents, for example through assurances of confidentiality. (72) The Court therefore found that Russia had fallen short of its obligation to furnish all necessary facilities to assist the Court in its task of establishing the facts of the case. (73)

3. Article 4 of Protocol No. 4

Under this provision, Georgia alleged that its nationals had been the subject of a collective expulsion from the territory of the Russian Federation. (74) The Court took note of the concordant description given by the Georgian witnesses and international governmental and non-governmental organizations of the summary procedures conducted before the Russian courts. (75) It observed, in particular that according to the Monitoring Committee of PACE, the expulsions had followed a recurrent pattern all over the country and in their reports the international organizations had referred to coordination between the administrative and judicial authorities. (76) The Court held it established that, during the period in question, the Russian courts had made thousands of expulsion orders expelling Georgian nationals. (77) Even though, formally speaking, a court decision had been made in respect of each Georgian national, the Court considered that the conduct of the expulsion procedures during that period, after the circulars and instructions had been issued, and the number of Georgian nationals expelled from October 2006 onwards had made it impossible to carry out a reasonable and objective examination of the particular case of each individual. (78)

Accordingly, the Court concluded that the expulsions of Georgian nationals during the period in question had not been carried out following a reasonable and objective examination of the particular case of each individual. This amounted to a breach of Article 4 of Protocol No. 4. (79)

4. Other Violations

The ECtHR concluded that other violations of the ECHR had been committed. First of all, it observed that the expulsions of the Georgian nationals were preceded by mass arrests--in the streets, at their workplace, or at their homes. (80) The Court considered these complaints as closely linked to the violations of Article 4 of Protocol No. 4, and therefore considered that the arrests that preceded the collective expulsion were arbitrary, amounting to an administrative practice in breach of Article 5 [section] 1 ECHR. (81) Moreover, in the absence of effective and accessible remedies available to Georgian nationals against these arrests, detention, and expulsion orders during the period in question, the Court concluded that there has also been a violation of Article 5 [section] 4 ECHR. (82)

Finally, the Georgian Government submitted that the serious overcrowding in the cells, the adequacy of the sleeping facilities, the lack of hygiene or privacy of the sanitary facilities, the fact that the detainees lived, slept and used the toilets in the same room, the examples of deaths and serious illnesses among the detainees, and other circumstances described in the application clearly amounted to a breach of Article 3 ECHR. In light of the well-established case law in this field, (83) the Court concluded that the conditions of detention caused undeniable suffering to the Georgian nationals and should be regarded as both inhumane and degrading treatment which amounted to an administrative practice in breach of Article 3 ECHR. (84) Closely linked to this violation, the Court held that at the material time there was no effective remedy available in the Russian legal system that could be used to put an end to the inhumane and degrading detention conditions or to obtain adequate and sufficient redress in connection with such a complaint. (85) Accordingly, it concluded that there had been a violation of Article 13 ECHR. (86)

5. Article 41 ECHR

As far as the award of just satisfaction is concerned, the Court held that this question was not ready for examination. (87) As a result, the Court reserved the question and invited the two Governments to submit in writing, within 12 months from the date of the judgment, their observations on this matter. (88) This judgment has not been delivered yet.

6. Observations

The judgment in the case of Georgia v. Russia (No. 1), one of the few inter-State cases so far decided by the ECtHR, is a strong message not only to Russia but to all member States of the Council of Europe. The different violations were adopted almost unanimously, only the Russian judge D. Dedov voting against almost all violations. In his opinion, the Court has taken "a controversial approach to the establishment of facts, assessment of the evidence and application of its own case-law which is hardly acceptable in a situation of strong political opposition between the high authorities of the applicant and the respondent States." (89)

The two cases that have been dealt with so far are traditional insofar as they have originated from situations where aliens who resided lawfully on the territory of one of the member States of the Council of Europe were expulsed collectively. The following group of cases differs from this pattern, rendering thereby an extension of the scope of Article 4 of Protocol No. 4 necessary.

IV. THE NECESSARY EXTENSION OF THE SCOPE OF ARTICLE 4 OF PROTOCOL NO. 4 THROUGH AN EFFECTIVE AND DYNAMIC INTERPRETATION OF THE ECHR

A. Hirsi Jamaa and Others v. Italy

The case of Hirsi Jamaa and Others v. Italy, decided by the Grand Chamber of the Court in 2012, is a landmark case in the protection of aliens entering Europe. (90) The applicants alleged, in particular, that their transfer to Libya by the Italian authorities had violated Article 3 ECHR and Article 4 of Protocol No. 4. (91) The case raised interesting questions of jurisdiction and extra-territorial application of the ECHR. This case is regarded as the starting point of a remarkable extension of the scope of Article 4 of Protocol No. 4 insofar as the Court applied this guarantee for the first time to a situation involving the removal of aliens to a third State carried out outside national territory. The original meaning of this guarantee, adopted in 1963, was to prohibit "collective expulsions of aliens of the kind which was a matter of recent history," (92) or, in other words, to prohibit expulsions of aliens residing lawfully in the territory of one of the States Parties to the Protocol.

1. Facts

The applicants, eleven Somali and thirteen Eritrean nationals, were part of a group of about two hundred individuals who left Libya in 2009 aboard three vessels with the aim of reaching the Italian coast. (93) On 6 May 2009, when the vessels were within the Maltese Search and Rescue Region of responsibility, they were intercepted by ships from the Italian Revenue Police (Guardia di finanza) and the Coastguard. (94) The occupants of the intercepted vessels were transferred onto Italian military ships and returned to Tripoli. The applicants stated that, during that voyage, the Italian authorities did not inform them of their destination and took no steps to identify them. (95) On arrival in the Port of Tripoli, following a ten-hour voyage, the migrants were handed over to the Libyan authorities. According to the applicants' version of events, they objected to being handed over to the Libyan authorities but were forced to leave the Italian ships. (96)

At a press conference held on the following day, the Italian Minister of the Interior stated that the operations to intercept vessels on the high seas and to push migrants back to Libya were the consequence of the entry into force, in February 2009, of bilateral agreements concluded with Libya, and represented an important turning point in the fight against clandestine immigration. (97) Two of the applicants died of unknown circumstances after the events in question. (98) Fourteen of the applicants were granted refugee status by the Office of the High Commissioner for Refugees (UNHCR) in Tripoli between June and October 2009. (99) Following the revolution which broke out in Libya in February 2011, the quality of contact between the applicants and their representatives deteriorated. When the case was under examination by the Court, the lawyers were currently in contact with six of the applicants, four of whom resided in Benin, Malta or Switzerland, where some were awaiting a response to their request for international protection. One of the applicants was in a refugee camp in Tunisia and planned to return to Italy. In June 2011 one of the applicants was awarded refugee status in Italy, which he had entered unlawfully. (100)

2. The Law (Jurisdiction, Article 1 ECHR)

As mentioned above, the Court had to first deal with the question of whether the relevant facts in the instant case fell within the jurisdiction of Italy according to Article 1 ECHR. (101) The Court underlined the principle of international law enshrined in the Italian Navigation Code, according to which a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. (102) The Court did not accept the Government's version of the events as "rescue operations on the high seas", or the allegedly minimal level of control exercised over the applicants. (103) The events had taken place entirely on board ships of the Italian armed forces, in which the crews of which were composed exclusively of Italian military personnel. (104) In the period between boarding those ships and being handed over to the Libyan authorities, the applicants had been under continuous and exclusive de jure and de facto control of the Italian authorities. (105) Accordingly, the events giving rise to the alleged violations fell within Italy's jurisdiction within the meaning of Article 1 of the Convention. (106)

3. Article 4 of Protocol No. 4

As mentioned above, the Court was, for the first time, called upon to examine whether Article 4 of Protocol No. 4 applied to a case involving the removal of aliens to a third State that was carried out outside the national territory. (107) It observed that neither Article 4 of Protocol No. 4 nor the travaux preparatories of the Convention precluded extra-territorial application of that Article. (108) Furthermore, limiting its application to collective expulsions from the national territory of Member States would mean that a significant component of contemporary migratory patterns would not fall within the ambit of that provision. This would deprive migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, of an examination of their personal circumstances before being expelled, unlike those travelling by land. (109) The Court went on to recognize that the notion of "expulsion" was principally territorial, as was the notion of "jurisdiction". Where, however, as in the instant case, the Court had found that a Contracting State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion. (110) Furthermore, the special nature of the maritime environment could not justify an area outside the law where individuals were covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention. (111) Article 4 of Protocol No. 4 was therefore applicable in the instant case. (112)

Once the applicability of Article 4 of Protocol No. 4 was established, the Court had to examine whether this provision had actually been breached. The Court observed that the transfer of the applicants to Libya had been carried out without any examination of each applicant's individual situation. (113) Referring in particular to the Eonka (114) case, dealt with above, the Court underlined that the applicants had not been subjected to any identification procedure by the Italian authorities, which had restricted themselves to embarking them on military ships and disembarking them in Libya. (115) As a result, the removal of the applicants had been of a collective nature, which breached Article 4 of Protocol No. 4. (116)

4. Other Violations

The prohibition of collective expulsion was not the only guarantee invoked by the applicants in Strasbourg. They also complained, inter alia, that they had been exposed to a risk of torture and inhumane or degrading treatment in Libya as well as their respective countries of origin as a result of having been returned. (117) The Court examined these two aspects separately: (1) the risk that the applicants would suffer inhumane and degrading treatment in Libya; and (2) the danger of being returned to their respective countries of origin. (118) As far as the first aspect was concerned, the Court considered that in the present case substantial grounds had been shown for believing that there was a real risk that the applicants would be subjected to treatment in Libya contrary to Article 3. (119) Therefore, the Court concluded that, by transferring the applicants to Libya, the Italian authorities, in full knowledge of the facts, exposed them to such treatment. (120) Secondly, the Court considered that, when the applicants had been transferred to Libya, the Italian authorities knew or should have known that there had been insufficient guarantees protecting the parties concerned from the risk of being arbitrarily returned to their countries of origin. Italian authorities knew in particular to the lack of any asylum procedure and the impossibility of making the Libyan authorities recognize the refugee status granted by UNHCR. (121) As a result, there has been a violation of this second aspect also.

5. Just Satisfaction

Under Article 41 ECHR, the Court held that the respondent State had to pay to each applicants EUR 15000 in respect of non-pecuniary damage and EUR 1575.74 for costs and expenses. (122)

6. Execution of the Judgment

Under Article 46 ECHR (Binding force and execution of judgments), (123) the Court, given the special nature of the human rights breaches in the instant case, found it appropriate to indicate the individual measures required for the execution of the present judgment. (124) Having regard to the circumstances of the case, the Court considered that the Italian Government must take all possible steps to obtain assurances from the Libyan authorities that the applicants would not be subjected to treatment incompatible with Article 3 ECHR or arbitrarily repatriated. (125)

7. Observations

Once the jurisdiction and extra-territoriality ascertained, the violation of Article 4 of Protocol No. 4 was not difficult to establish. It is noteworthy that all the violations were ruled unanimously by all 17 judges of the Grand Chamber, which happens rather rarely. Moreover, the fact that the Court gave the respondent State some clear indication how the judgment could be executed deserves being mentioned also. As a matter of fact, the Court's judgments are essentially declaratory in nature and it is primarily for the State in breach of the ECHR or of one of the protocols thereto to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 46 ECHR. (126) Accordingly, only in very exceptional circumstances, the Court provides the State concerned with information, in the judgment, on the question what measure might be appropriate in view to implementing the judgment. This is a strong message to Italy and to all other member States of the Council of Europe that might face similar situations in future. Another element that deserves attention is the fact that the ECtHR, by finding a violation, made clear that States Parties to the Convention could not simply "hide" behind bilateral agreements concluded with a third State. It would have been too easy to allow Italy to discharge from their duties under the Convention a normative treaty for the effective protection of human rights. By invoking conflicting obligations deriving from bilateral agreements that concluded many years after the entry into force of the ECHR, Italy would not be bound by the latter instrument and whose human record cannot be compared to those of the member States of the Council of Europe. (127)

Finally, it is remarkable how the Court accepted the extraterritorial application of Article 4 of Protocol No. 4, namely through a "dynamic" and "effective "approach to interpretation of the ECHR. In this regard, [paragraph] [paragraph] 174 and 175 are noteworthy and read as follows:

175. It remains to be seen, however, whether such an application is justified. To reply to that question, account must be taken of the purpose and meaning of the provision in issue, which must themselves be analyzed in the light of the principle, firmly rooted in the Court's case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions .... Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory....

176. A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control in so far as they constitute tools for States to combat irregular immigration.

The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control. (128)

As far as the principle of "effective" interpretation is concerned, the Court often reiterates that the ECHR intends to guarantee rights that "are not theoretical or illusory, but practical and effective." (129) This principle gave rise, inter alia, to a right to effective access to court, (130) the right to an effective legal assistance in criminal proceedings, (131) or to positive obligations under Article 2 (right to life) and Article 3. (132)

The principle of "dynamic" (or "evolutive") interpretation is a response to the question of the moment relevant for interpretation: the moment of the conclusion of the ECHR (1950) or the moment of the ECtHR's judgment? Already in Tyrer v. the United Kingdom, the Court stated that the ECHR is a "living instrument ... which must be interpreted in the light of present-day conditions." (133) Accordingly, the Court, when considering the question whether judicial corporal punishment was consistent with Article 3 ECHR, could not "but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe." (134) Later, this approach has enabled the Court to creatively update the interpretation of a number of Convention Articles in various situations. Some examples include: the elimination of the distinction between the legal position of children of married parents and children born out of wedlock, (135) the abolition of criminal prosecution of homosexuals, (136) the recognition of the new identity of post-operative transsexuals, (137) the reduction of the democratic deficit in the EU through the application of the right to free elections to elections for the EU Parliament, (138) or the legal recognition of conscientious objectors. (139)

In the present case, these two well-established principles enabled the Court to assess, under the prohibition of collective expulsion within the meaning of Article 4 of Protocol No. 4, the acts of a State taking place outside of its own territorial borders. Without this normative update, most of the contemporary situations of collective expulsion within Europe, namely those which arise in maritime environment, would not be able to be addressed by the Court under Article 4 of Protocol No. 4. (140) In other words, the millions of asylum seekers and refugees currently arriving on the borders of Europe by the sea would not be effectively protected against collective expulsion within the meaning of this provision.

By adopting it liberal approach, the ECtHR goes clearly further than what is imposed by public international law. The International Law Commission (ILC) has, in Article 9 [section] 1 of its 2014 Draft articles on the expulsion of aliens, (141) defined 'collective expulsion' as "expulsion of aliens, as a group". Paragraph 2 of Article 9 prohibits collective expulsion of aliens. Article 9 does not specify whether aliens who have not yet entered the territory of another State could benefit from this prohibition. In fact, the contrary seems to be the case, since the ILC commentary indicates that Article 9 has to be understood in light of the general definition of 'expulsion' contained in Article 2 a) according to which "'expulsion'" means a formal act or conduct attributable to a State by which an alien is compelled to leave the territory of that State". (142) Article 2 a) adds that this definition "does not include...the non-admission of an alien to a State." (143) In other words, it is safe to conclude that the jurisprudence of the ECtHR in the field of collective expulsion is, at least for the time being, more generous to the cause of aliens than public international law.

B. Sharifi and Others v. Italy and Greece

This case was decided by a chamber of the second section on 21 October 2014. (144) As far as the facts are concerned, it is similar to Hirsi Jamaa and Others v. Italy,145 without entailing an element of extra-territoriality. It was directed against two States, namely Italy and Greece.

1. Facts

The 35 applicants are Afghan (32), Sudanese (two) and Eritrean (1) nationals, alleging that on various dates in 2007 and 2008 they had entered Greek territory from Afghanistan. (146) After illegally boarding vessels for Italy, they had arrived between January 2008 and February 2009 in the port of Ancona, where the border police had intercepted and immediately deported them back to Greece. (147) According to the applicants, this practice of immediate return had already been followed for several months by the Italian authorities. They also alleged that neither Italy nor Greece had authorized them to apply for asylum. (148)

In respect of Greece, the applicants complained of the difficulties encountered in the procedures for obtaining asylum. (149) In respect of Italy, they alleged that they had been unable to contact lawyers or interpreters and that they had been given no information about their rights. (150) Equally, they had been given no "official, written and translated" document concerning their return. They alleged that the Italian border police had immediately taken them back to the ships from which they had just disembarked. On these ships, they were allegedly detained in cabins or even in toilets. (151)

2. Law

In a preliminary question the Court observed that the lawyers have lost contact with all of the initial applicants, except for four. As a result, the Court struck out the cases in respect to these applicants and pursued the exam on the merits of the case only in respect of the remaining four applicants. (152)

3. Article 4 of Protocol No. 4 (against Italy)

It followed from the Government's observations that, in order for the applicants to have their case examined and decided by the Ministry of the Interior, they had to have expressed, during the identification process, a wish to benefit from asylum or another form of international protection. (153) Consequently, a lack of essential information in a comprehensible language during the identification process in the port of Ancona would deprive intercepted immigrants of any possibility of claiming asylum in Italy. (154) The participation of officials from the Italian Council for Refugees and of an interpreter during the identification process would therefore have been crucial. However, even in the case of the sole applicant whose name appeared in the register of the Italian immigration authorities, there was nothing in the case file to confirm their involvement. (155)

In any event, the case file contained no request for readmission sent to the Greek authorities in application of Article 5 of the 1999 bilateral agreement between Italy and Greece on readmission and of the protocol on its execution. (156) This finding seemed to corroborate the fears of the Special Rapporteur of the United Nations Human Rights Council, to the effect that readmission to Greece as practiced in the Italian ports of the Adriatic Sea was frequently in breach of the scope of the 1999 bilateral agreement and the procedures laid down in it. (157) Equally, the concerns expressed by the Commissioner for Human Rights of the Council of Europe with regard to what he described as "automatic returns" from Italy to Greece could not be overlooked. (158) In those circumstances, the measures to which the applicants had been subjected in the port of Ancona amounted to collective and indiscriminate expulsions. Accordingly, the Court held, unanimously, that there has been a violation of Article 4 of Protocol No. 4 by the Italian Government. (159)

4. Other violations and Just Satisfaction

The Court also held, unanimously, that there had been a violation by Italy of Article 3 ECHR, for having accepted the risk, by sending the applicants back to Greece, that they will be repatriation from Greece to Afghanistan without effective examination of their asylum claims, as well as of Article 13 ECHR for not having granted an effective remedy. (160) The Court found a violation of Article 13 ECHR by Greece. (161) As far as just satisfaction is concerned, the claim in respect of Italy was made out of time and no claim was made against Greece as far non-pecuniary damage is concerned. (162) Greece was only obliged to reimburse costs and expenses amounting to EUR 5000. (163)

5. Observations

The case of Sharifi and Others v. Italy and Greece is a follow-up to Hirsi Jamaa and Others v. Italy, without raising the question of extra-territorial application of the ECtHR and its protocols. Contrary to the said case, the case of Sharifi and Others v. Italy and Greece, directed against two States Parties, is an example of a situation of bad cooperation between two member States of the Council of Europe to the detriment of the human being fleeing from war and destruction. On the merits, it confirms the findings of the said judgment.

C. Case currently pending before the Grand Chamber: Khlaifia et autres c. Italie

A last case that deserves being mentioned is Khlaifia et autres c. Italie, (164) which again concerns interceptions of persons at sea. This case was referred to the Grand Chamber on 1 February 2016, after the second section had found various violations of the ECHR in a judgment of 1 September 2015. A hearing before the Grand Chamber was held on 22 June 2016. Since the case will be reexamined, the present contribution gives only a short summary of the facts and the findings of the chamber.

1. Facts

In September 2011, the three applicants, all of Tunisian nationality, departed from their country of origin together with other persons aboard makeshift vessels with a view to reaching the Italian coast. (165) After several hours at sea, the boats were intercepted by the Italian coastguards, who escorted them to the port of the island of Lampedusa. (166) The applicants were placed in a reception center. This center was subsequently destroyed following a riot, and they were transferred to ships moored in Palermo harbor. (167) The Tunisian Consul registered their civil status details. (168) Expulsion orders were issued against the applicants, who denied ever having been served with the corresponding documents.169 They were then taken to Tunis airport, where they were released. (170)

2. Law

As far as the complaint under Article 4 of Protocol No. 4 is concerned, the ECtHR observed that individual expulsion orders had been issued against the applicants. However, these orders were identically worded, the only differences being the personal data of the addressees. (171) 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. (172) 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. (173) At the material time, a large number of persons of the same origin were dealt with in the same manner as the applicants; (174) and the bilateral agreements with Tunisia were not made public, rather 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. (175) These elements were sufficient to exclude the existence of adequate guarantees on genuine, differentiated consideration of the individual situation of each of the persons concerned. (176) Accordingly, there had been a violation of Article 4 of Protocol No. 4. (177) The applicants submitted several other complaints under the ECHR that the Court has all considered wellfounded. (178)

3. Just satisfaction

Under Article 41 ECHR, the Court obliged the respondent State to pay to each applicant the sum of EUR10000 for nonpecuniary damage and to the applicants together the sum of EUR 9344.51 for costs and expenses. (179)

4. Observations

The Court does not give reasons why it considers it necessary to reexamine a case by the Grand Chamber. (180) The fact that certain violations have not been adopted unanimously is certainly one of the reasons for reexamination. Another ground might be the enormous practical relevance of the case for similar situations in which the States are facing on a daily basis these days. It will be interesting to see whether the Grand Chamber will confirm the findings of the section.

CONCLUSION

People around the world will never forget the image of the Syrian boy, aged 3, who was part of 11 Syrian refugees who drowned off the coastal town of Bodrun, Turkey, after a failed attempt to flee the war-ravaged country. The image of the dead body lying, face to the sand, on the beach of the popular tourist destination became a heart-breaking symbol not only for the humanitarian catastrophe caused by the war in Syria, but also for the "fortress Europe" with its tough immigration policy run by the most powerful Member States of the European Union. This author could not agree more with Adam Withnall's article published in the Independent of 2nd September 2015, raising the question "[i]f these extremely powerful images of a dead Syrian child washed up on a beach don't change Europe's attitude towards refugees, what will?" (181)

In time of crisis, when the destiny of the individual refugee does often have to stand behind Brussels' Realpolitik, a last anchor provided by Strasbourg is needed more than ever. The powers of the ECtHR, legal as well as financial, are nevertheless limited and it is not likely that this will change soon, taken the harsh criticism that this institution has been facing in recent years. Indeed, many member States of the Council of Europe are of the opinion that the Court goes beyond its mandate in obvious disrespect of the so-called "margin of appreciation" doctrine, imposing on the Court a certain self-restraint in scrutinizing the decisions of domestic tribunals. On the other hand, the mere existence of the ECtHR is a symbol for humanity and gives hope to many stranded people having fled their beloved homes for a better life.

The protection against expulsion that would run counter to basic human rights, in particular the right to life, and the prohibition of torture and the respect for private and family life, is a powerful aspect in the search for dignity and humanity. Therein, the prohibition of collective expulsion within the meaning of Article 4 of Protocol No. 4, having remained dead letter for many years, has proven more recently a cornerstone for the protection of refugees and immigrants. It guarantees each immigrant and refugee arriving in one of the States Parties to the ECHR a reasonable, objective, and effective examination of his and her individual case.

Finally, thanks to the effective and dynamic interpretation of the ECtHR, this prohibition extends today to situations involving the removal of aliens to a third State carried out even outside national territory. It has been demonstrated that following this extension of the scope of Article 4 of Protocol No. 4, most of the contemporary challenges raising issues of collective expulsion can be examined by the Court, namely those situations involving asylum seekers and refugees trying to reach Europe by the sea. The Court has proven again its ability to adapt to changing circumstances and its willingness to remain relevant during the most burning crisis of modern history. This dynamic and effective approach to interpretation, coupled with the right to individual application, the request for interim measures under Rule 39, and the duty to seek binding assurances, under Article 46 ECHR, constitutes a significant tool box against arbitrary treatment by States.

Europe faces without doubts its most serious crisis since WWII--hopefully, the ECtHR can resist the criticism and pressure and remain the "Conscience of Europe", the last island of hope for many in these stormy times.

Daniel Rietiker, PhD (University of Lausanne), Senior Legal Officer at the European Court of Human Rights, Lecturer at Lausanne University, Adjunct Faculty member at Suffolk University Law School, Boston, MA, 2015 and 2016, and Visiting Fellow at Harvard Law School, Boston, MA, 2014. The author expressed his own views.

(1.) See The European Convention, EUROPEAN COURT ON HUMAN RIGHTS, http:// www.echr.coe.int/Pages/home.aspx (last visited June 28, 2016) (entry into force on 3 September 1953).

(2.) COUNCIL OF EUR., THE CONSCIENCE OF EUROPE: 50 YEARS OF THE EUROPEAN COURT OF HUMAN RIGHTS (Egbert Myjer et al. eds., October 2010).

(3.) See Full List, COUNCIL OF EUROPE, http://www.coe.int/en/web/conventions/ full-list/-/conventions/treaty/005/signatures?p_auth=2HEJOtVw (last visited June 28, 2016) (for the list of States Parties to the ECHR) [hereinafter Full List].

(4.) European Convention for the Protection of Human Rights and Fundamental Freedoms art. 34,213 U.N.T.S. 221, E.T.S. 5 (2010) [hereinafter ECHR], Article 34 of the ECHR (Individual applications) states:

The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way effective exercise of this right.

Id.

(5.) Rule 39 states:

The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.

Rules of Court, 2016 Eur. Ct. H.R. 1 (Jan. 1, 2016). In the case of Mamatkulov and Askarov v. Turkey, the European Court of Human Rights (ECtHR) held that these interim measures are legally binding upon the States. See Mamatkulov & Askarov v. Turkey, 2004 Eur. Ct. H.R. 203, at [section] 128 (Feb. 4, 2005).

(6.) See KAREN REID, A PRACTITIONER'S GUIDE TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS, 20-22 (Sweet & Maxwell 2012) (for a commentary of this important tool).

(7.) 161 Eur. Ct. H.R. (ser. A) (1989).

(8.) Id. [paragraph] 111.

(9.) See Jeunesse v. the Netherlands (GC), App. No. 12738/10, 2014 Eur. Ct. H.R. (2014); Maslov v. Austria (GC), App. No. 1638/03, Eur. Ct. H.R. (2008); Oner v. the Netherlands (GC), App. No. 4610/99, Eur. Ct. H.R. (2006). See also Emre v. Switzerland (No. 2), App. No. 42034/04, Eur. Ct. H.R. (2008) (in which the ECtHR found a first violation of Article 8 followed by a second violation of Article 8, combined with Article 46 of the ECHR, due to unsatisfactory execution by Switzerland of the first judgment).

(10.) See Full List, supra note 3 (for list of ratifications).

(11.) Id. at No. 046 (entry into force on 2 May 1968).

(12.) See infra Part III.A.

(13.) See Davydov v. Estonia App. No. 16387/03, Eur. Ct. H.R. (2005); Berisha and Haljiti v. The Former Yugoslav Republic of Macedonia, App. No. 18670/03, Eur. Ct. H.R. (2005). In other cases, the ECtHR concluded that Article 4 of Protocol No. 4 was not violated.

(14.) European Convention for the Protection of Human Rights and Fundamental Freedoms, Collected Edition of the "Travaux Preparatoires" of Protocol No. 4 to the Convention, at 442, available at http://www.echr.coe.int/LibraryDocs/Travaux/ECHRTrav-aux-P4-BIL2907919.pdf [hereinafter ECHR Collected Edition] (securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, Strasbourg, 1976).

(15.) Id. at 443.

(16.) Id. at 430.

(17.) In fact, the Committee considered that a provision seeking to regulate individual expulsions was already provided for in the European Convention on Establishment of 13 December 1955, in the same terms as those in the above draft.

(18.) ECHR Collected Edition, supra note 15, at 447.

(19.) Article 1 of Protocol No. 7 (Procedural safeguards relating to expulsion of aliens) reads as follows:

1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

a) to submit reasons against his expulsion,

b) to have his case reviewed, and

c) to be represented for these purposes before the competent authority or a person or persons designated by that authority.

2. An alien may be expelled before the exercise of his rights under paragraph 1.a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.

ECHR, supra note 5, at Protocol No. 7 art. 1.

(20.) Article 3 of the ECHR states, "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment." ECHR, supra note 5, at art. 3. Contrary to Article 3 of the ECHR or Article 4 of Protocol No. 4, Articles 8-12 of the ECHR are not absolute and can be restricted.

(21.) ECHR Collected Edition, supra note 15, at Art. 3.

(22.) On 1st November 1998, pursuant to Protocol No. 11, the single permanent Court replaced the previous Conventions organs, the Commission and the "old" Court.

(23.) Becker v. Denmark, App. No. 7011/75, Eur. Ct. H.R., (1975), at 215, 235.

(24.) Id. at 216.

(25.) Id.

(26.) K.G. v. the Federal Republic of Germany, App. No. 7704/76, Eur. Ct. H.R. (1977); O. and Others v. Luxembourg, App. No. 7757/77, Eur. Ct. H.R. (1978); A. and Others v. Netherlands, App. No. 14209/88, Eur. Ct. H.R. 274 (1988); Tahiri v. Sweden, App. No. 25129/94, Eur. Ct. H.R. (1995); Andric v. Sweden, App. No. 45917/99, Eur. Ct. H.R. (1999).

(27.) Eonka v. Belgium, App. No. 51564/99, Eur. Ct. H.R.(2002). The summary of facts and law is essentially taken from a legal summary provided by the ECtHR: http:/ /hudoc.echr.coe.int/fre#{"itemid":["002-5464"]}.

(28.) Id. [paragraph] [paragraph] 7-8.

(29.) Id. [paragraph] 9.

(30.) Id. [paragraph] 10.

(31.) Id. [paragraph] 14.

(32.) Id. [paragraph] 18.

(33.) Eonka v. Belg., App No. 51564/99, at [paragraph] 19.

(34). Id.

(35.) Id. [paragraph] 20.

(36.) Id. [paragraph] 21.

(37.) Id.

(38.) Id. [paragraph] 22.

(39.) Eonka v. Belg., App No. 51564/99, at [paragraph] 17.

(40.) Id.

(41.) Id. [paragraph] 62.

(42.) Id. [paragraph] 63.

(43.) For the minority views, see the partly concurring and partly dissenting opinion of Judge Velaers and the partly dissenting opinion of Judge Jungwiert joined by Judge Kuris, annexed to the judgment.

(44.) Lonka v. Belg., App No. 51564/99, at [paragraph] [paragraph] 34-46. On the other hand, the Court considered that there was no violation of Article 5 [section] 2 ECHR, which provides that "[e]veryone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him." Id. at [paragraph] 47.

(45.) Id. [paragraph] [paragraph] 53-55.

(46.) Id. [paragraph] [paragraph] 64-85. Article 13 (Right to effective remedy) reads as follows: "Everyone whose rights and freedoms as set forth in [this] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." Id. at [paragraph] 64.

(47.) Article 41 of the ECHR states, "If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." ECHR, supra note 5, at art. 41.

(48.) Eonka v. Belg., App No. 51564/99, at [paragraph][paragraph] 87-89.

(49.) Id. [paragraph][paragraph] 90-92.

(50.) D.H. and Others v. Czech Republic (GC), App. No. 57325/00, Eur. Ct. H.R. (2007); Orsus and Others v. Croatia (GC), App. No. 15766/03, Eur. Ct. H.R. (2010).

(51.) See V.C. v. Slovakia, App. No. 18968/07, Eur. Ct. H.R. (2011) (case of a woman who did not freely consent to her sterilization).

(52.) Moldovan and Others v. Romania, App. Nos. 41138/98, 64320/01, Eur. Ct. H.R. (2005), and Chapman v. United Kingdom (GC), App. No. 27238/95, Eur. Ct. H.R. (2001).

(53.) Nachova and Others v. Bulgaria (GC), App. Nos. 43577/98, 43579/98, Eur. Ct. H.R. (2005). In this case, the Bulgarian authorities failed to investigate the question whether the shooting of one of the applicants was based on racial grounds. This resulted to a violation of the procedural aspect of Article 2 of the ECHR.

(54.) Article 14 of the ECHR (Prohibition of discrimination) states "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." ECHR, supra note 5, at art. 14.

(55.) Georgia v. Russia, (GC), App. No. 13255/07, Eur. Ct. H.R. (2014). For a legal summary provided by the ECtHR see http://hudoc.echr.coe.int/fre#{"itemid":["0029584"]}.

(56.) Article 33 of the ECHR states "Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party." ECHR, supra note 5, at art. 33.

(57.) See Cyprus v. Turkey, App. No. 25781/94, Eur. Ct. H.R. (2001). The first inter-state case was Cyprus v. Turkey, in which the ECtHR found several violations of the Convention. On 12 May 2014, the Court delivered its judgment on just satisfaction (Article 41 ECHR) in the same case.

(58.) Georgia v. Russia, App. No. 13255/07, Eur. Ct. H.R. at [paragraph] 23 (2014).

(59.) Id. [paragraph] 27.

(60.) Id.

(61.) Id. [paragraph] 30.

(62.) Id. [paragraph] 31.

(63.) Id. [paragraph] 36.

(64.) Georgia v. Rus., App. No. 13255/07, at [paragraph] 25.

(65.) Id. [paragraph] 28.

(66.) Id. [paragraph] 32.

(67.) Id.

(68.) Id. [paragraph] 37.

(69.) Id. [paragraph] 29.

(70.) ECHR, supra note 5, at art. 38.

(71.) Georgia v. Rus., App. No. 13255/07, at [paragraph] [paragraph] 104-107 (2014).

(72.) Id. at [paragraph] 108. See also Mutatis mutandis, Shamayev and Others v. Georgia and Russia, No. 36378/02, Eur. Ct. H.R. 2005-111, at [paragraph] [paragraph] 15-17, 246, 362. Here, the President of the Chamber had given assurances of confidentiality of certain documents submitted by the Russian Government. Id.

(73.) Mutatis mutandis, Shamayev and Others v. Georgia and Russia, No. 36378/ 02, Eur. Ct. H.R. 2005-III, at [paragraph] [paragraph] 109-10.

(74.) Id. [paragraph] [paragraph] 164-65.

(75.) Id. [paragraph] 172.

(76.) Id.

(77.) Id. [paragraph] 175.

(78.) Mutatis mutandis, Shamayev and Others v. Geor. and Russ., No. 36378/02, at [paragraph] 175.

(79.) Id. [paragraph] 178.

(80.) Id. [paragraph] 185.

(81.) Id. [paragraph] [paragraph] 186-87.

(82.) Id. [paragraph] 188.

(83.) See e.g., Ananyev and Others v. Russia, Nos. 42525/07 and 60800/08, Eur. Ct. H.R., at [section] [section] 139-142.

(84.) Georgia v. Russia, App. No. 13255/07, Eur. Ct. H.R. at [paragraph] 205.

(85.) Id. [paragraph] 215.

(86.) Id. [paragraph] 216.

(87.) Id. % 240.

(88.) Id. at Holding of the Court, [paragraph] 17.

(89.) Id. at Dissenting Opinion, Judge Dedov 1.

(90.) Hirsi Jamaa and Others v. Italy, App. No. 27765/09, Eur. Ct. H.R. (2012). For a legal summary provided by the ECtHR see http://hudoe.eehr.coe.int/ fre#{"itemid":["002-102"]}.

(91.) Id. [paragraph] 3.

(92.) ECHR, supra note 5, at art. 4, Protocol 4 (cited in Hirsi Jamaa and Others v. Italy, App. No. 27765/09, Eur. Ct. H.R. (2012), at 1 174).

(93.) Hirsi Jamaa and Others v. It., App. No. 27765/09, at [paragraph] 9.

(94.) Id. [paragraph] 10.

(95.) Id. [paragraph] 11.

(96.) Id. [paragraph] 12.

(97.) Id. [paragraph] 13.

(98.) Id. [paragraph] 15.

(99.) Hirsi Jamaa and Others v. It., App. No. 27765/09, at [paragraph] 15.

(100.) Id. [paragraph] 17.

(101.) ECHR, supra note 5, at art.l. Article 1 ECHR states: "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention."

(102.) Hirsi Jamaa and Others v. Italy, App. No. 27765/09, at [paragraph] 78.

(103.) Id. [paragraph] 79.

(104.) Id. [paragraph] 81.

(105.) Id.

(106.) Id. [paragraph] 82. For a similar situation see also Medvedyev and Others v. France (GC), App. No. 3394/03, Eur. Ct. H.R. (2010) at [paragraph] 67.
   [T]he Court considers that, as this was a case of France having
   exercised full and exclusive control over the Winner and its crew,
   at least de facto, from the time of its interception, in a
   continuous and uninterrupted manner until they were tried in
   France, the applicants were effectively within France's
   jurisdiction for the purposes of Article 1 of the Convention.


Id.

(107.) Hirsi Jamaa and Others v. Italy, App. No. 27765/09, Eur. Ct. H.R. (2012) at [paragraph] 169.

(108.) Id. 1 174. The ECtHR added in this paragraph the following explanations:
   The commentary on the draft reveals that, according to the
   Committee of Experts, the aliens to whom the Article refers are not
   only those lawfully resident on the territory but "all those who
   have no actual right to nationality in a State, whether they are
   passing through a country or reside or are domiciled in it, whether
   they are refugees or entered the country on their own initiative,
   or whether they are stateless or possess another nationality"
   (Article 4 of the final Committee draft, p. 505,1 34).


Id.

(109.) Id. [paragraph] 177.

(110.) Id. [paragraph] 178.

(111.) Id.

(112.) Id. [paragraph] [paragraph] 182.

(113.) Id. [paragraph] 185.

(114.) Eonka v. Belgium, App. No. 51564/99, Eur. Ct. H.R (2002).

(115.) Id.

(116.) Id. [paragraph] 186.

(117.) Id. [paragraph] 83.

(118.) Id. [paragraph] 84.

(119.) Id. [paragraph] 136.

(120.) Id. [paragraph] 137.

(121.) Id. [paragraph] 156.

(122.) Id. [paragraph] [paragraph] 215, 218.

(123.) Article 46 ECHR states: "1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution (...)".

(124.) Id. [paragraph] [paragraph] 209-10.

(125.) Id. [paragraph] 211.

(126.) Id. [paragraph] 209.

(127.) For a case where the Court underlined the special nature of the ECHR, see Neulinger and Shuruk v. Switzerland (GC), App. No. 41615-07, Eur. Ct. H.R., at f 145 (2010). "If it is enforced a certain time after the child's abduction, that may undermine, in particular, the pertinence of the Hague Convention in such a situation, it being essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis." Id. (emphasis added).

(128.) Id. [paragraph][paragraph] 174-76 (emphasis added).

(129.) Artico v. Italy, 37 Eur. Ct. H.R. (ser. A) at [paragraph] 33 (1974).

(130.) Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A) (1979).

(131.) Id.

(132.) McCann and Others v. United Kingdom, App. No. 18984/91, 324 Eur. Ct. H.R. (ser. A) (1995). This principle can be considered as an aspect of the teleological interpretation method, emphasizing the "object and purpose" of a treaty, in conformity with Article 31 [section] 1 of the 1969 Vienna Convention of the Law of Treaties. It states: "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (emphasis added).

(133.) Tyrer v. the United Kingdom, 26 Eur. Ct. H.R. (ser. A) at [paragraph] 31 (1978). The "living instrument" approach has been described by the former President of the Court, Judge Wildhaber, as "one of the best known principles of Strasbourg caselaw." See L. Wildhaber, The European Court of Human Rights in Action, RIT SUMEIKAN L. REV., 83, 84 (2004); REID, supra note 6 at 69-70; George Letsas, A Theory of Interpretation of the European Convention on Human Rights, 58-79, Oxford (2007); A.A. Can?ado Trindade, La Interpretacion de tratados en el derecho internacional y la especiftdad de los tratados de derechos humanos, in ZLATA DRNAS DE CLEMENT, ESTUDIOS DE DERECHO INTERNACIONAL EN HOMENAJE AL PROF. E.J. REY CARO, 747-776, (Cordoba, 2003). See also Daniel Rietiker, The principle of "Effectiveness" in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law--No Need for the Concept of Treaty Sui Generis, 79 Nordic J. of Int'l L. 245, 260-267 (2010). The present author has referred to this principle as the "temporal dimension" of the principle of "effectiveness." Id.

(134.) Tyrer v. United Kingdom, 26 Eur. Ct. H.R., at [paragraph] 31.

(135.) Marckx v. Belgium, 31 Eur. Ct. H.R. (ser. A) (1978).

(136.) Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (Ser. A) (1983).

(137.) Christine Goodwin v. United Kingdom (GC), App. No. 28957/95, Eur. Ct. H.R. (2002-VI).

(138.) Matthews v. United Kingdom (GC), App. No. 24833/94, Eur. Ct. H.R. (1999-1).

(139.) Bayatyan v. Armenia, App. No. 23459/03, Eur. Ct. H.R (2011).

(140.) Hirsi Jamaa and Others v. Italy, App. No. 27765/09, Eur. Ct. H.R., at [paragraph] 178 (2012).

(141.) Rep. of the Int'l Law Comm'n on the Work of Its Sixty-Sixth Session, U.N. Doc. A/69/10 (2014). This was submitted to the General Assembly as a part of the Commission's report covering the work of that session. Id.

(142.) Id. at Commentary, [section] 1 at 14 document (emphasis added).

(143.) Id. (emphasis added).

(144.) Sharifi and Others v. Italy and Greece, Eur. Ct. H.R. App. No. 16643/09 (2014). For a legal summary provided by the ECtHR see http://hudoc.echr.coe.int/ fre#{"itemid":["002-10215"]}.

(145.) Hirsi Jamaa and Others v. Italy, App. No. 27765/09, Eur. Ct. H.R. (2012) at [paragraph] 178.

(146.) Sharifi and Others v. It. and Greece, App. No. 16643/09, at [paragraph] 8.

(147.) Id.

(148.) Id. [paragraph] [paragraph] 8-9.

(149.) Id. [paragraph] 11.

(150.) Id. [paragraph] 10.

(151.) Id.

(152.) Sharifi and Others v. It. and Greece, App. No. 16643/09, at 1 134. The Court can strike out applications out of its list of cases in conformity with ECHR Article 37 (Striking out applications). Id. This provision is worded as follows:

1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that a) the applicant does not intend to pursue is application: or b) the matter has been resolved; or c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. 2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.

Id.

(153.) [paragraph] 217.

(154.) Id.

(155.) Id. [paragraph] 218.

(156.) Id. [paragraph] 219.

(157.) Sharifi and Others v. It. and Greece, App. No. 16643/09, at [paragraph] 219.

(158.) Id.

(159.) Id. [paragraph] 225.

(160.) Id. [paragraph] [paragraph] 9, 11.

(161.) Id. [paragraph] 4 (operative part).

(162.) Id. [paragraph] [paragraph] 251-52.

(163.) Sharifi and Others v. It. and Greece, App. No. 16643/09, at [paragraph] 256.

(164.) Khlaifia and Others v. Italy, App. No. 16483/12, Eur. Ct. H.R. (2015). For a legal summary provided by the ECtHR see http://hudoe.eehr.coe.int/fre#{"itemid" :["002-10843"]}.

(165.) Id. [paragraph] 6.

(166.) Id.

(167.) Id. [paragraph] [paragraph] 9-10.

(168.) Id. [paragraph] 13.

(169.) Id. [paragraph] 14.

(170.) Khlaifia and Others v. It., App. No. 16483/12, at [paragraph] 16.

(171.) Id. [paragraph] 153.

(172.) Id. [paragraph] 156.

(173.) Id.

(174.) Id.

(175.) Id.

(176.) Khlaifia and Others v. It., App. No. 16483/12, at [paragraph] 157.

(177.) Id. [paragraph] 158.

(178.) Id. The ECtHR found violations of Articles 3, 5 [paragraph] [paragraph] 1, 4, and 13 ECHR. Id.

(179.) Khlaifia and Others v. It., App. No. 16483/12, at [paragraph] [paragraph] 177, 180.

(180.) The relevant Article 43 ECHR reads as follows:

1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. 2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance. 3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

ECHR, supra note 5, at art. 43.

(181.) Adam Withnall, If These Extraordinarily Powerful Images of a Dead Syrian Child Washed Up on a Beach Don't Change Europe's Attitude to Refugees, What Will?, Independent (Sep. 2, 2015), http://www.independent.co.uk/news/world/europe/ if-these-extraordinarily-powerful -images-of-a-dead-syrian-child-washed-up-ona-beach-don-t-change-10482757.html.
COPYRIGHT 2016 Suffolk University Law School
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2016 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Symposium on the Refugee Crisis
Author:Rietiker, Daniel
Publication:Suffolk Transnational Law Review
Date:Sep 22, 2016
Words:12387
Previous Article:Beyond the deterrence paradigm in global refugee policy.
Next Article:Cities rising: European municipalities and the refugee surge.
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |