The administrative detention of an alien for the purpose of executing an expulsion order is lawful. The right to liberty and security has not been violated.
Jeddi v. Italy 09.01.2010 (no. 42086/14)
Aliens deportation and legality of temporary administrative detention.
The applicant was arrested for illegal entry into Italy. He applied for asylum which was rejected but was granted a residence permit on humanitarian grounds. Despite being granted a residence permit he fled to Switzerland seeking asylum again, but under the Dublin Regulation, he was sent back to Italy, as the first host country where he was temporarily detained for expulsion as he failed to disclose the decision to grant a residence permit reasons. He was released when his lawyer informed the authorities of the above decision.
The Court recalled that Article 5 established a fundamental right, the protection of the individual against any arbitrary interference by the State with the right to liberty.
In the present case, however, the Court found that the applicant did not exercise due diligence when he secretly left Italy to apply for asylum in Switzerland simultaneously, pending the issue of a residence permit in Italy for humanitarian reasons and given that he had already secretly left Italy to go to Italy. In Switzerland, the Italian police authorities could legitimately fear that the applicant would flee in order to avoid the expulsion measure.
Also, the applicant’s release immediately after obtaining a copy of the residence permit issued demonstrates the good faith of the Milan police authorities.
The Court has therefore held that there has been no violation of Article 5 § 1, that there is no question of examining Article 5 § 4 and the claim for compensation under Article 5 § 5 is unfounded since no violation of paragraph 1 has been found.
The applicant, Sami Jeddi, is a Tunisian national, who was born in 1983 and lives in Castel Volturno
The case concerned the applicant’s appeal against his placement in the Milan Identification and
Expulsion Centre with a view to his removal, despite a court ruling requiring the authorities to grant
him a residence permit on humanitarian grounds.
In April 2011 Mr Jeddi was arrested by Italian police on the island of Lampedusa where he had come
ashore illegally and without identity documents.
On 21 April 2011 the police authorities issued him with a removal order and, pending its execution,
he was placed in the Identification and Expulsion Centre in Santa Maria Capua Vetere; he submitted
an application for international protection while he was there. On 31 May 2011 the Territorial
Commission for the Recognition of International Protection rejected his request. Mr Jeddi challenged
this decision before the Naples District Court. In a judgment of 16 November 2011 the court held
that the grounds for seeking asylum or subsidiary protection were not sufficient. However, the court
took the view – on the basis of a decree of the President of the Council of Ministers of 6 October
2011 – that the applicant was entitled to a residence permit on humanitarian grounds until
31 December 2012.
On 24 December 2011 Mr Jeddi arrived in Switzerland where he submitted an asylum application.
On 19 October 2012 the Swiss authorities sent him back to Italy in accordance with the “Dublin
Regulation”. Upon his arrival at Milan airport, he was taken to the border police and on the same
day the Prefect of Varese notified him of a removal order against him. Pursuant to this order, he was
taken to the Identification and Expulsion Centre in Milan pending his removal.
On 22 October 2012 the Milan Justice of the Peace, after hearing the applicant, who was assisted by
an interpreter and a court-appointed lawyer, endorsed the detention measure
THE DECISION OF THE COURT…
The Court noted that Article 5 established a fundamental right, the protection of the individual against any arbitrary interference by the State with his right to liberty.
One of the exceptions to the right to freedom referred to in Article 5 § 1 (5) (f) allows States to limit the status of aliens in the context of immigration control.
Deprivation of liberty must also be ‘legal’. Concerning the “legality” of a detention, including the observation of “legal channels”, the Convention essentially refers to national law and establishes the obligation to comply with both substantive and procedural rules, but also requires that all deprivations of liberty be complied with Article 5.
The Court noted that the Naples court issued its ruling granting the applicant the right to obtain a residence permit on humanitarian grounds on 20 December 2011.
Without further processing of the residence permit, the applicant left Italy and arrived in Switzerland on 24 December 2011, where he applied for asylum in parallel.
As the Italian court pointed out, by the order of 22 October 2013, the decision of the Naples court did not automatically have effect, but merely opened the applicant’s right to obtain a residence permit for humanitarian reasons, which would be binding on the police authorities.
In addition, the Court noted that the applicant waited until 12 November 2012, before applying for a residence permit, and on 17 November 2012, before appealing against the expulsion decision, 1 month later, before the Court of Justice of Vareze.
It is likely that, had he been able to produce the Naples court ruling, or even better his residence permit at the time of his arrival in Milan, the expulsion decision and subsequent administrative detention measure would not have been issued against him.
In this respect, the release of the applicant immediately after obtaining a copy of the decision demonstrates the good faith of the Milan police authorities.
The Court considers that it was for the applicant to await the outcome of the proceedings before the Naples court to grant him a residence permit if he fulfilled the formal requirements. When he secretly left Italy to apply for asylum in Switzerland at the same time, the applicant showed, at least, a lack of due diligence.
Moreover, it is apparent from the documents before the Court that the applicant did not voluntarily return to Italy but returned there from the Swiss authorities pursuant to the Dublin Rules, indicating that he was no longer interested in the pending proceedings in Italy.
In those circumstances, the Varese Prefect cannot be accused of having decided to expel the applicant on the basis of the objective evidence available to him, namely his lack of residence permit and the applicant’s statement that he had not sought international protection.
Furthermore, the head of the Milan police cannot be criticized for having decided to place the applicant under administrative detention for the purpose of his deportation. On the one hand, the applicant did not have identity documents or passports and was required to identify him before he could be sent to Tunisia. On the other hand, since the applicant had already secretly left Italy to go to Switzerland, the Italian police authorities could legitimately fear that they would disappear in order to avoid the expulsion measure.
In the light of the foregoing, the Court considers that the deprivation of liberty suffered by the applicant was carried out in accordance with the law and in a legal procedure and found no arbitrariness.
For these reasons, the Court concludes that there has been no violation of Article 5 § 1 of the Convention.
VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
Relying on Article 5 (4) of the Convention, the applicant complained about the limited nature of the review of the legality of the Milan detention decision.
In view of its finding as to the validity of Milan’s decision upholding the administrative detention imposed on the applicant, the Court considers that there is no separate issue in the light of Article 5 § 4 of the Convention, and that his claim for compensation is unfounded. of Article 5 (5) of the Convention.
Non-infringement of Article 5 § 1.