Deprivation of freedom of asylum seekers, inhuman conditions of detention and lack of information about their rights. Violation of Articles 3 and 5 of the ECHR
JUDGMENT
A.E. and T.B. v. Italy 16.11.2023 (app. no. 18911/17, 18941/17 and 18959/17) and W.A. and others v. Italy (app. no. 18787/17)
SUMMARY
All the applicants (nine in total) arrived in Italy in the summer of 2016. According to the applicants in the first case, on 17 and 19 August 2016 they were arrested, forced into a police van and taken to a police station in degrading conditions because they were asked to undressed without privacy and not given water.
The ECtHR found degrading treatment for the conditions of detention at the police station, because there was insufficient food and water in August, and for one applicant that he also suffered physical abuse.
The Court found a lack of clear and accessible legislation and that the applicants were not informed of the reasons for the deprivation of their personal liberty, in breach of Article 5 §§ 2 and 4.
The ECtHR ruled in the case of A.E. and T.B. 27,000 euros in total for moral damage and 4,000 euros for costs.
PROVISIONS
Article 3
Article 5
PRINCIPAL FACTS
The four applicants in the first case were born between 1980 and 1994. They all live in Turin (Italy),
except for one who lives in Germany.
The applicants in the second case were born between 1989 and 1996. One lives in Egypt, one in
Niger and three in Sudan.
All nine applicants arrived in Italy in the summer of 2016. The first four reached the Italian coast by
boat, while the other five were rescued by the Italian navy from the sea. Some transited via various
hotspots in Italy; all eventually ended up in Ventimiglia at the Red Cross centre.
***
According to the applicants in the first case, on 17 and 19 August 2016 they were arrested, forced
into a police van and taken to what they understood to be a police station. They were searched,
asked to undress and left naked for around ten minutes before having their fingerprints taken.
They were then forced to get on a bus, escorted by numerous police officers, without knowing their
destination or being provided with any documents regarding the reasons for their transfer or
deprivation of liberty. They later found out they had been transferred from Ventimiglia to the
Taranto hotspot.
At the Taranto hotspot, which they were allegedly not permitted to leave, they maintain that they
were served with a refusal-of-entry order on 22 August 2016. The next day they were returned to
Ventimiglia by bus.
According to the applicants, conditions were difficult at the hotspot and during each of the 15-hour
bus transfers. They were under constant police control, in a climate of violence and threats, without
sufficient food or water at the height of summer. They maintain that they had not met a lawyer or a
judge during that period and had not understood what was going on.
On 24 August 2016 they were transferred from Ventimiglia to Turin Airport in order to be put on a
flight to Sudan. As there were not enough seats on the aircraft, their removal was postponed. They
were thus transferred to the Turin CIE (Identification and Expulsion Centre) and the Chief of Police
issued each of them with a detention order.
One of the applicants (T.B.) alleges that the authorities attempted to remove him again, on
1 September 2016. He protested and the police hit him in his face and stomach. They then forced
him onto the plane and tied him up. However, the pilot refused to take off because of his agitated
state. He was taken back to the Turin CIE.
All four applicants have since been granted international protection, essentially on the basis of their
personal history in Sudan and consequent risk to their lives if returned.
***
According to the applicants in the second case, on the other hand, they were never informed at any
point that they could ask for international protection. They also claim that they were part of a group
of about 40 migrants for whom seats were found on the flight leaving on 24 August 2016 and were
repatriated to Khartoum the same day.
The Italian Government contest that claim, submitting that the applicants had never been on Italian
territory. They provided the Court with the ID photographs of the persons removed to Sudan on
24 August 2016, submitting that they did not have a close likeness to the applicants. They also argue
that the names of those removed did not correspond to those of the applicants.
In view of the parties’ disagreement the Court appointed a facial comparison expert from the
Belgian police (Rule A1 §§ 1 and 2 of the Rules of Court – investigative measures) who, on 5 October
2022, submitted a report assessing whether the persons represented in the photographs and video
footage provided by the applicants’ representatives corresponded to those depicted in the ID
photographs submitted by the Government. The report concluded, as concerned one of the
applicants in the case, W.A., that the two individuals depicted in those sources corresponded to the highest level of reliability. There was no reliable correspondence as concerned the other four
applicants.
THE DECISION OF THE COURT…
Article 3 (inhuman or degrading treatment)
Firstly, the Court rejected as inadmissible all but one of the nine applicants’ complaints about the
Italian authorities not having taken into account the risk of inhuman treatment if they were returned
to Sudan. In A.E. and T.B. v. Italy the applicants, who had been granted international protection,
were no longer at risk of deportation and could not therefore claim to be victims of a violation of
Article 3. In W.A. and Others v. Italy the Court considered that four out of the five applicants, for
whom the 2022 Belgian police report had not established a reliable correspondence between the
photographs provided by the parties, had not sufficiently substantiated their complaints.
The Court declared admissible the complaint of the remaining applicant, W.A.. It noted that the
documents available were sufficient to conclude that he was one of the individuals indicated in the
ID photographs provided by the Government. It therefore considered that he had been among the
Sudanese nationals removed to Sudan on 24 August 2016.
However, the Court went on to hold that there had been no violation of Article 3 in W.A.’s case. It noted in particular that there had been inaccuracies in his application form to the Court, and that, even though he had been assisted by a lawyer at different points in the procedure to remove him, he had explicitly stated that he had not wished to ask for international protection and had merely been transiting through Italy. Moreover, unlike the applicants in the case A.E. and T.B. v. Italy, who had been granted international protection on the basis of their personal experiences, W.A. had only argued that he belonged to a tribe that was persecuted by the Sudanese Government after lodging
his application with the European Court. That information had not therefore been available to the
Italian authorities at the relevant time and the Court concluded that the Italian Government had not
breached their duty to provide effective guarantees to protect W.A. against arbitrary refoulement to
his country of origin.
***
As concerned the remaining complaints by the applicants in A.E. and T.B. v. Italy, the Court found
that the conditions of their arrest and bus transfers, taken together, had to have caused
considerable distress and feelings of humiliation that had amounted to degrading treatment, in
violation of Article 3.
In particular, although the Government had argued that the applicants had had to undress in order
to be medically examined after their arrest, the Court found that that had not been a compelling
enough reason to justify them being left naked together with many other migrants, with no privacy
and while guarded by the police.
Furthermore, the applicants’ subsequent long bus transfers had taken place over a short space of
time and at a very hot time of the year, without sufficient food or water and without them knowing
where they had been going or why. They had been under constant police control, in a climate of
violence and threats. Cumulatively such conditions had to have been a source of distress.
Lastly, the Court found that there had been a violation of Article 3 as concerned the applicant (T.B.)
who alleged that he had been beaten during another attempt to remove him. Two of the other
applicants had corroborated his account at interviews concerning their requests for international
protection; one stated in particular that he had seen another migrant being brought back from the
airport by the police with a swollen face. Even though T.B. had said during an interview with the
authorities that he could identify the three police officers responsible for his ill-treatment, no
investigation had as yet been carried out.
Article 5 (right to liberty and security)
The Court noted that the Government had provided it with a copy of a refusal-of-entry order in
respect of one of the applicants, A.E., dated 1 August 2016, and the Court therefore declared his
complaint about his detention inadmissible.
On the other hand, it found that the other three applicants in the case, who had not been served
with refusal-of-entry orders until 22 August 2016, had been arrested and transferred without any
documentation and without them being able to leave the Taranto hotspot. That had amounted to an
arbitrary deprivation of their liberty, in violation of Article 5 § 1 (f).
There was moreover a lack of clear and accessible legislation relating to hotspots, and the Court
failed to see how the authorities could have informed the applicants of the legal reasons for their
deprivation of liberty or have given them the opportunity to challenge in court the grounds for their
de facto detention, in breach of Article 5 §§ 2 and 4.
Article 41 (just satisfaction)
The Court held that Italy was to pay the applicants in A.E. and T.B. v. Italy 27,000 euros (EUR) in total
in respect of non-pecuniary damage and EUR 4,000, jointly, in respect of costs and expenses.
