A. The Applicants’ Arrival on the Italian Coast and Their Removal to Tunisia

1. 11. On 16 September 2011 in the case of the first applicant, then the next day, 17 September, in the case of the second and third applicants, the applicants left Tunisia with others on board rudimentary vessels heading for the Italian coast. After several hours at sea, their vessels were intercepted by the Italian coastguard, which escorted them to a port on the island of Lampedusa. The applicants arrived on the island on 17 and 18 September 2011 respectively.

2. 12. The applicants were transferred to an Early Reception and Aid Centre (Centro di Soccorso e Prima Accoglienza – “CSPA”) on the island of Lampedusa at Contrada Imbriacola where, after giving them first aid, the authorities proceeded with their identification. According to the Government, on this occasion individual “information sheets” were filled in for each of the migrants concerned (see paragraph 224 below); this is disputed by the applicants (see paragraph 222 below).

3. 13. They were accommodated in a part of the centre reserved for adult Tunisians. According to the applicants, they were held in an overcrowded and dirty area and were obliged to sleep on the floor because of the shortage of available beds and the poor quality of the mattresses. They had to eat their meals outside, sitting on the ground. The centre was kept permanently under police surveillance, making any contact with the outside world impossible.

4. 14. The applicants remained in the CSPA until 20 September, when a violent revolt broke out among the migrants. The premises were gutted by fire and the applicants were taken to a sports complex on Lampedusa for the night. At dawn on 21 September they managed, together with other migrants, to evade the police surveillance and walk to the village of Lampedusa. From there, with about 1,800 other migrants, they started a demonstration through the streets of the island. After being stopped by the police, the applicants were taken first back to the reception centre and then to Lampedusa airport.

5. 15. On the morning of 22 September 2011 the applicants were flown to Palermo. After disembarking they were transferred to ships that were moored in the harbour there. The first applicant was placed on the Vincent, with some 190 other people, while the second and third applicants were put on board the Audace, with about 150 others.

6. 16. The applicants described the conditions as follows. All the migrants on each vessel were confined to the restaurant areas, access to the cabins being prohibited. They slept on the floor and had to wait several hours to use the toilets. They could go outside onto the decks twice a day for only a few minutes at a time. They were allegedly insulted and ill-treated by the police, who kept them under permanent surveillance, and they claimed not to have received any information from the authorities.

7. 17. The applicants remained on the ships for a few days. On 27 September 2011 the second and third applicants were taken to Palermo airport pending their removal to Tunisia; the first applicant followed suit on 29 September.

8. 18. Before boarding the planes, the migrants were received by the Tunisian Consul. In their submission, the Consul merely recorded their identities in accordance with the agreement between Italy and Tunisia of April 2011 (see paragraphs 36-40 below).

9. 19. In their application the applicants asserted that at no time during their stay in Italy had they been issued with any document.

   Annexed to their observations, the Government, however, produced three refusal-of-entry orders dated 27 and 29 September 2011 that had been issued in respect of the applicants. Those orders, which were virtually identical and drafted in Italian with a translation into Arabic, read as follows:

   “The Chief of Police (questore) for the Province of Agrigento

   Having regard to the documents in the file, showing that

   (1) on ‘17 [18] September 2011’ members of the police force found in the province of ‘Agrigento’, near the border of: ‘island of Lampedusa’, Mr [surname and forename] born … on [date] … ‘Tunisian’ national … not fully identified, ‘undocumented’ (sedicente);

   (2) the alien entered the territory of the country by evading the border controls;

   (3) the identification (rintraccio) of the alien took place on/immediately after his arrival on national territory, and precisely at: ‘island of Lampedusa’;

   WHEREAS none of the situations [provided for in] Article 10 § 4 of Legislative Decree no. 286 of 1998 is present;

   CONSIDERING that it is appropriate to proceed in accordance with Article 10 § 2 of Legislative Decree no. 286 of 1998;

   ORDERS

   that the above-mentioned person be

   REFUSED LEAVE TO ENTER AND RETURNED

   – An appeal may be lodged against the present order within a period of sixty days from the date of its service, with the Justice of the Peace of Agrigento.

   – The lodging of an appeal will not, in any event, suspend the enforcement (efficacia) of the present order.

   – The director of the Migration Office will proceed, for the enforcement of the present order, with its notification, together with a summary translation into a language spoken by the alien or into English, French or Spanish; and with its transmission to the diplomatic or consular delegation of the State of origin, as provided for by Article 2 § 7 of Legislative Decree no. 286 of 1998; and with its registration under Article 10 § 6 of the said Legislative Decree.

   To be escorted to the border at: ‘Rome Fiumicino’

   [Issued at] Agrigento [on] 27[29]/09/2011 on behalf of the Chief of Police

   [Signature]”

10. 20. These orders were each accompanied by a record of notification bearing the same date, also drafted in Italian with an Arabic translation. In the space reserved for the applicants’ signatures, both records contain the handwritten indication “[the person] refused to sign or to receive a copy” (si rifiuta di firmare e ricevere copia).

11. 21. On their arrival at Tunis airport, the applicants were released.

B. Decision of the Palermo Preliminary Investigations Judge

1. 22. A number of anti-racism associations filed a complaint about the treatment to which the migrants had been subjected, after 20 September 2011, on board the ships Audace, Vincent and Fantasy.

2. 23. Criminal proceedings for abuse of power and unlawful arrest (Articles 323 and 606 of the Criminal Code) were opened against a person or persons unknown. On 3 April 2012 the public prosecutor sought to have the charges dropped.

3. 24. In a decision of 1 June 2012 the Palermo preliminary investigations judge (giudice per le indagini preliminari) granted the public prosecutor's request.

4. 25. In his reasoning the judge emphasised that the purpose of placing the migrants in the CSPA was to accommodate them, to assist them and to cater for their hygiene-related needs for as long as was strictly necessary, before sending them to an Identification and Removal Centre (Centro di Identificazione ed Espulsione – “CIE”) or taking any measures in their favour. At the CSPA the migrants could, according to him, obtain legal assistance and information about asylum application procedures.

   The judge shared the public prosecutor's view that the interpretation of the conditions concerning the grounds for and duration of the confinement of migrants in a CSPA was sometimes vague. He also agreed with the public prosecutor that a range of factors were to be taken into consideration, leading to the conclusion that the facts of the case could not be characterised as a criminal offence.

   The judge noted that the Agrigento police authority (questura) had merely registered the presence of the migrants at the CSPA without taking any decisions ordering their confinement.

5. 26. According to the judge, the unstable balance on the island of Lampedusa had been upset on 20 September 2011, when a group of Tunisians had carried out an arson attack, seriously damaging the CSPA at Contrada Imbriacola and rendering it incapable of fulfilling its purpose of accommodating and assisting migrants. The authorities had then organised transfer by air and sea to evacuate migrants from Lampedusa. The following day, clashes had taken place in the island's port between the local population and a group of foreigners who had threatened to explode gas canisters. The judge explained that there had thus been a situation which was likely to degenerate, and which was covered by the notion of “state of necessity” (stato di necessità) as provided for in Article 54 of the Criminal Code (see paragraph 34 below). It was thus an imperative to arrange for the immediate transfer of some of the migrants by using, among other means, the ships.

   As to the fact that, in the emergency situation, no formal decision had been taken to place the migrants on board the ships, the judge found that this could not be regarded as an unlawful arrest and that the conditions for the migrants’ transfer to CIEs were not satisfied. Firstly, the CIEs were overcrowded, and secondly, the agreements with the Tunisian authorities suggested that their return was supposed to be prompt. The fact that a refusal-of-entry measure (respingimento) had been ordered in respect of the migrants, without judicial scrutiny, a few days after their arrival, was not unlawful in the judge's view. The calculation of a “reasonable time” for the adoption of that measure and for the migrants’ stay in the CSPA had to take account of logistical difficulties (state of the sea, distance between Lampedusa and Sicily) and of the number of migrants concerned. In those circumstances, the judge concluded that there had been no infringement of the law.

   Moreover, the judge was of the view that no malicious intent could be attributed to the authorities, whose conduct had been prompted first and foremost by the public interest. The migrants had not sustained any unfair harm (danno ingiusto).

6. 27. In so far as the complainants had alleged that the way in which the migrants had been treated had been detrimental to their health, the judge noted that the investigations had found that nobody on the ships had applied for asylum. Those who, at the Lampedusa CSPA, had expressed an intention to do so, together with any vulnerable individuals, had been transferred to the centres of Trapani, Caltanissetta and Foggia. Unaccompanied minors had been placed in temporary accommodation and no pregnant women had been transferred to the ships. The migrants on board had been able to receive medical assistance, hot water, electricity, meals and hot drinks. Moreover, as recorded in a press agency note of 25 September 2011, T.R., a member of parliament (MP) had boarded the ships in the port of Palermo, and had observed that the migrants were in good health, that they were receiving assistance and were sleeping in cabins containing bed linen or reclining seats (poltrone reclinabili). Some of the Tunisians had been taken to hospital, while others had been treated on board by medical staff. Accompanied by the deputy chief of police (vice questore) and by police officers, the MP in question had talked with some of the migrants. He had thus been able to observe that they had access to prayer rooms, that the food was satisfactory (pasta, chicken, vegetables, fruit and water) and that the Civil Protection Authority (Protezione civile) had provided them with clothing. Some of the migrants had complained of a lack of razors, but the MP had observed that this could be explained by a measure taken to prevent self-harm.

7. 28. The judge noted that, even though the migrants had not been in custody or under arrest, a photograph published in a newspaper had shown one of them with his hands bound by black ribbons and in the company of a police officer. He had been part of a small group of individuals who, fearing immediate removal, had engaged in acts of self-harm and had caused damage to buses. In the judge's view, the restraint in question had been necessary to guarantee the physical well-being of the persons concerned and to avoid aggressive acts against police officers who were neither armed nor equipped with any means of coercion. In any event, the conduct of the police officers had been justified by a “state of necessity”, within the meaning of Article 54 of the Criminal Code (see paragraph 34 below).

8. 29. In the light of the foregoing, the preliminary investigations judge concluded that the case file contained no evidence of the physical and mental elements of the offences provided for in Articles 323 and 606 of the Criminal Code.

C. Decisions of the Agrigento Justice of the Peace

1. 30. Two other migrants in respect of whom a refusal-of-entry order had been issued challenged those orders before the Agrigento Justice of the Peace.

2. 31. In two decisions (decreti) of 4 July and 30 October 2011, respectively, the Justice of the Peace annulled those orders.

   In his reasoning the judge observed that the complainants had been found on Italian territory on 6 May and 18 September 2011 respectively and that the orders at issue had been adopted only on 16 May and 24 September 2011. While acknowledging that Article 10 of Legislative Decree no. 286 of 1998 (see paragraph 33 below) did not indicate any time-frame for the adoption of such orders, the judge took the view that a measure which by its very nature restricted the freedom of the person concerned had to be taken within a reasonably short time after the identification (fermo) of the unlawful migrant. To find otherwise amounted to allowing de facto detention of the migrant in the absence of any reasoned decision of the authority, which would contravene the Constitution.

A. The Constitution

1. 32. Article 13 of the Italian Constitution reads as follows:

   “Personal liberty is inviolable.

   No one may be detained, inspected, or searched, or otherwise subjected to any restriction of personal liberty, except by a reasoned order of a judicial authority and only in such cases and in such manner as provided by law.

   In exceptional circumstances and under such conditions of necessity and urgency as shall be precisely defined by law, the police may take provisional measures that shall be referred within 48 hours to a judicial authority and which, if not validated by the latter in the following 48 hours, shall be deemed withdrawn and ineffective.

   Any act of physical or mental violence against persons subjected to a restriction of personal liberty shall be punished.

   The law shall establish the maximum duration of any preventive measure of detention (carcerazione preventiva).”

B. Legislation on the Removal of Irregular Migrants

1. 33. Legislative Decree (decreto legislativo) no. 286 of 1998 (“Consolidated text of provisions concerning immigration regulations and rules on the status of aliens”), as amended by Laws no. 271 of 2004 and no. 155 of 2005, and by Legislative Decree no. 150 of 2011, provides inter alia as follows:

   Article 10 (refusal of entry)

   “1. The border police shall refuse entry (respinge) to aliens who seek to cross the border without meeting the conditions laid down in the present consolidated text governing entry into the territory of the State.

   2. Refusal of entry combined with removal shall, moreover, be ordered by the Chief of Police (questore) in respect of aliens:

   1. (a) who have entered the territory of the State by evading border controls, when they are arrested on entry or immediately afterwards;

   2. (b) or who … have been temporarily allowed to remain for purposes of public assistance.

   …

   4. The provisions of paragraphs 1 [and] 2 … do not apply to the situations provided for in the applicable provisions governing political asylum, the grant of refugee status or the adoption of temporary protection measures on humanitarian grounds.

   …”

   Article 13 (administrative deportation)

   “1. For reasons of public order or national security the Minister of the Interior may order the deportation of an alien, even if he or she [does not reside] in the territory of the State, giving prior notice thereof to the Prime Minister and the Minister for Foreign Affairs.

   2. The prefect shall give directions for removal where the alien:

   1. (a) has entered the territory of the State by evading border controls and has not already been refused entry under Article 10 hereof;

   …

   8. An appeal may be lodged against a deportation order with the judicial authority …”

   Article 14 (execution of removal measures)

   “1. Where, in view of the need to provide assistance to an alien, to conduct additional checks of his or her identity or nationality, or to obtain travel documents, or on account of the lack of availability of a carrier, it is not possible to ensure the prompt execution of the deportation measure by escorting the person to the border or of the refusal-of-entry measure, the Chief of Police (questore) shall order that the alien be held for as long as is strictly necessary at the nearest Identification and Removal Centre, among those designated or created by order of the Minister of the Interior in collaboration (di concerto) with the Minister for Social Solidarity and the Treasury, the Minister for the Budget, and the Minister for Economic Planning.

   …”

C. Criminal Code

1. 34. Article 54 § 1 of the Criminal Code reads, in its relevant part, as follows:

   “Acts committed under the constraint of having to save [the perpetrator or a third party] from an instant danger of serious bodily harm shall not be liable to punishment, provided that such danger has not been voluntarily caused [by the perpetrator] and cannot otherwise be avoided, and provided that the said act is proportionate to the danger. …”

D. Italian Senate

1. 35. On 6 March 2012 the Italian Senate's Special Commission for Human Rights (the “Senate's Special Commission”) approved a report “on the state of [respect for] human rights in prisons and reception and detention centres in Italy”. Visited by the Commission on 11 February 2009, the Lampedusa CSPA is described particularly in the following passages:

   “Stays at the Lampedusa centre were supposed to be limited to the time strictly necessary to establish the migrant's identity and the lawfulness of his presence in Italy or to decide on his removal. In reality, as has already been criticised by the UNHCR and a number of organisations operating on the spot, the duration of such stays has sometimes extended to over twenty days without there being any formal decision as to the legal status of the person being held. Such prolonged confinement, combined with an inability to communicate with the outside world, and the lack of freedom of movement, without any legal or administrative measure providing for such restrictions, has led to heightened tension, often manifested in acts of self-harm. Numerous appeals by organisations working on the island have been made concerning the lawfulness of the situation there.

   …

   The rooms measure about 5 × 6 metres: they are supposed to accommodate twelve persons. They contain four-tier bunk beds, placed side by side, occupied by up to twenty-five men per room … In many of the blocks, foam-rubber mattresses are placed along the corridor. In many cases the foam-rubber from the mattresses has been torn away to be used as a cushion. In some cases, double mattresses, protected by improvised covers, have been placed on the landings, outside … On the ceiling, in many rooms, the plastic shade around the light has been removed and the bulb has disappeared. At the end of the corridor, on one side, there are toilets and showers. There is no door and privacy is ensured by cloth or plastic curtains placed in an improvised and haphazard manner. There are no taps and water flows from the pipes only when centrally activated. The pipes sometimes get blocked; on the floor, water or other liquids run as far as the corridor and into the rooms where the foam-rubber mattresses have been placed. The smell from the toilets pervades the whole area. When it starts to rain, those on the metal staircases, who have to go up to the floor above, get wet and carry dampness and dirt into the living quarters.”

A. International Law Commission

1. 46. The International Law Commission (ILC), at its sixty-sixth session, in 2014, adopted a set of “Draft articles on the expulsion of aliens”. This text was submitted to the United Nations General Assembly, which took note of it (Resolution A/RES/69/119 10 December 2014). The following Articles are of particular interest:

   Article 2

   Use of terms

   “For the purposes of the present draft articles:

   1. (a) ’expulsion’ means a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State; it does not include extradition to another State, surrender to an international criminal court or tribunal, or the non-admission of an alien to a State;

   2. (b) ’alien’ means an individual who does not have the nationality of the State in whose territory that individual is present.”

   Article 3

   Right of expulsion

   “A State has the right to expel an alien from its territory. Expulsion shall be in accordance with the present draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.”

   Article 4

   Requirement for conformity with law

   “An alien may be expelled only in pursuance of a decision reached in accordance with law.”

   Article 5

   Grounds for expulsion

   “1. Any expulsion decision shall state the ground on which it is based.

   2. A State may only expel an alien on a ground that is provided for by law.

   3. The ground for expulsion shall be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise.

   4. A State shall not expel an alien on a ground that is contrary to its obligations under international law.”

   Article 9

   Prohibition of collective expulsion

   “1. For the purposes of the present draft article, collective expulsion means expulsion of aliens, as a group.

   2. The collective expulsion of aliens is prohibited.

   3. A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles.

   4. The present draft article is without prejudice to the rules of international law applicable to the expulsion of aliens in the event of an armed conflict involving the expelling State.”

   Article 13

   Obligation to respect the human dignity and human rights of aliens subject to expulsion

   “1. All aliens subject to expulsion shall be treated with humanity and with respect for the inherent dignity of the human person at all stages of the expulsion process.

   2. They are entitled to respect for their human rights, including those set out in the present draft articles.”

   Article 15

   Vulnerable persons

   “1. Children, older persons, persons with disabilities, pregnant women and other vulnerable persons who are subject to expulsion shall be considered as such and treated and protected with due regard for their vulnerabilities.

   2. In particular, in all actions concerning children who are subject to expulsion, the best interests of the child shall be a primary consideration.”

   Article 17

   Prohibition of torture or cruel, inhuman or degrading treatment or punishment

   “The expelling State shall not subject an alien subject to expulsion to torture or to cruel, inhuman or degrading treatment or punishment.”

   Article 19

   Detention of an alien for the purpose of expulsion

   “1. (a) The detention of an alien for the purpose of expulsion shall not be arbitrary nor punitive in nature.

   (b) An alien detained for the purpose of expulsion shall, save in exceptional circumstances, be separated from persons sentenced to penalties involving deprivation of liberty.

   2. (a) The duration of the detention shall be limited to such period of time as is reasonably necessary for the expulsion to be carried out. All detention of excessive duration is prohibited.

   (b) The extension of the duration of the detention may be decided upon only by a court or, subject to judicial review, by another competent authority.

   3. (a) The detention of an alien subject to expulsion shall be reviewed at regular intervals on the basis of specific criteria established by law.

   (b) Subject to paragraph 2, detention for the purpose of expulsion shall end when the expulsion cannot be carried out, except where the reasons are attributable to the alien concerned.”

2. 47. In its Commentary to Draft Article 9 the ILC observed in particular as follows:

   “(1) Paragraph 1 of draft article 9 contains a definition of collective expulsion for the purposes of the present draft articles. According to this definition, collective expulsion is understood to mean the expulsion of aliens ‘as a group’. This criterion is informed by the case-law of the European Court of Human Rights. It is a criterion that the Special Rapporteur on the rights of non-citizens of the Commission on Human Rights, Mr. David Weissbrodt, had also endorsed in his final report of 2003. Only the ‘collective’ aspect is addressed in this definition, which must be understood in the light of the general definition of expulsion contained in draft article 2, subparagraph (a).

   …

   (4) The prohibition of the collective expulsion of aliens set out in paragraph 2 of the present draft article should be read in the light of paragraph 3, which elucidates it by specifying the conditions under which the members of a group of aliens may be expelled concomitantly without such a measure being regarded as a collective expulsion within the meaning of the draft articles. Paragraph 3 states that such an expulsion is permissible provided that it takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. The latter phrase refers in particular to draft article 5, paragraph 3, which states that the ground for expulsion must be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise.

   …”

B. Council of Europe's Parliamentary Assembly

1. 48. The facts of the case are connected with the large-scale arrival of unlawful migrants on the Italian coast in 2011 following, in particular, the uprisings in Tunisia and the conflict in Libya.

2. 49. In that context the Council of Europe's Parliamentary Assembly (PACE) set up an “Ad Hoc Sub-Committee on the large-scale arrival of irregular migrants, asylum-seekers and refugees on Europe's southern shores” (the “PACE Ad Hoc Sub-Committee”), which carried out a fact-finding visit to Lampedusa on 23 and 24 May 2011. A report on the visit was published on 30 September 2011. Its relevant passages read as follows:

   “II. History of Lampedusa as a destination for mixed migration flows

   …

   9. Because of its geographical location close to the African coast, Lampedusa has experienced several episodes in which it has had to cope with a large influx by sea of people wanting to go to Europe (31 252 in 2008; 11 749 in 2007; 18 047 in 2006; 15 527 in 2005).

   10. The numbers arriving fell sharply in 2009 and 2010 (2 947 and 459, respectively) following an agreement between Italy and Muammar Gaddafi's Libya. This agreement drew strong criticism because of the human rights violations in Libya and the appalling living conditions of migrants, refugees and asylum-seekers in the country. It also drew criticism, subsequently validated by UNHCR, that it risked denying asylum seekers and refugees access to international protection. It did however prove extremely effective in halting the influx and as a result, the island's reception centres were then closed and the international organisations active in Lampedusa withdrew their field presence.

   11. In 2011, following the uprisings in Tunisia and then in Libya, the island was confronted with a fresh wave of arrivals by boat. Arrivals resumed in two stages. The first to arrive on the island were Tunisians, followed by boats from Libya, among which many women and young children. The influx began on 29 January 2011 and the population of the island was quickly multiplied by two.

   12. Following these arrivals, Italy declared a humanitarian emergency in Lampedusa and called for solidarity from the European Union member states. The Prefect of Palermo was given emergency powers to manage the situation.

   13. As of 21 September 2011, 55 298 people had arrived by sea in Lampedusa (27 315 from Tunisia and 27 983 from Libya, mainly nationals of Niger, Ghana, Mali and the Côte d'Ivoire).

   …

   V. The players on the ground and their responsibilities

   26. The Prefecture of the province of Agrigento is responsible for all questions relating to the reception of persons arriving on the island until they are transferred elsewhere. The prefecture also oversees the Accoglienza private co-operative which manages the island's two reception centres. The immigration police office of the province of Agrigento is responsible for identifying new arrivals, transferring them and repatriating them if necessary. Since 13 April 2011, the Italian civil protection department has been co-ordinating the management of migration flows from North Africa.

   27. The international community is also active on the ground. The Office of the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), the Red Cross, the Order of Malta and the NGO Save the Children have teams on the spot.

   28. UNHCR, the IOM, the Red Cross and Save the Children are part of the ‘Praesidium Project’ and are helping to manage the arrivals of mixed migration flows by sea on Lampedusa. These organisations are authorised to maintain a permanent presence inside the Lampedusa reception centres and have interpreters and cultural mediators available. They dispatched teams to Lampedusa straight away in February 2011 (as noted earlier, their operation had been suspended when the arrivals decreased). The Praesidium Project, which has since been extended to other centres in Italy, stands as an example of good practice in Europe and the organisations involved have jointly published a handbook on management of mixed migration flows arriving by sea (for the time being in Italian only, but soon to be translated into English).

   29. The members of the Ad Hoc Sub-Committee found that all these players are working on good terms and are endeavouring to co-ordinate their efforts, with the shared priority of saving lives in sea rescue operations, doing everything possible to receive new arrivals in decent conditions and then assisting in rapidly transferring them to centres elsewhere in Italy.

   VI. Lampedusa's reception facilities

   30. It is essential for transfers to centres elsewhere in Italy to be effected as quickly as possible because the island's reception facilities are both insufficient to house the number of people arriving and unsuitable for stays of several days.

   31. Lampedusa has two reception centres: the main centre at Contrada Imbriacola and the Loran base.

   32. The main centre is an initial reception and accommodation centre (CSPA). The Ad Hoc Sub-Committee was informed by the director of the centre that its capacity varies from 400 to 1 000 places. At the time of the visit, 804 people were housed there. Reception conditions were decent although very basic. The rooms were full of mattresses placed side by side directly on the ground. The buildings, which are prefabricated units, are well ventilated because the rooms have windows and the sanitary facilities seem sufficient when the centre is operating at its normal capacity.

   33. At the time of the Ad Hoc Sub-Committee's visit, the centre was divided in two. One part was reserved for persons arriving from Libya and unaccompanied minors (including unaccompanied Tunisian minors). The other part, a closed centre within the centre (itself closed), was reserved for Tunisian adults.

   …

   VIII. Health checks

   41. The many health teams of the various organisations present (Red Cross, MSF, Order of Malta) and the numerous regional teams are co-ordinate[d] by the Head of the Palermo Health Unit.

   42. As soon as coastguards become aware of a boat arriving, they advise the medical co-ordinator and inform him of the number of people on board. All the persons concerned are then immediately informed and put on alert whatever the time of day or night.

   43. Initial checks on the state of health of persons arriving are carried out in the port, as soon as they have disembarked. Prior to that, Order of Malta members/doctors accompany the coastguard or customs services on interception and rescue operations at sea. They inform the medical teams on hand at the port of any cases possibly requiring specific and immediate medical treatment.

   44. On reaching the port, the new arrivals are quickly classified according to their needs using a clear colour-coding system. People requiring hospital treatment are transferred by helicopter to Palermo or elsewhere. The hospitals are obliged to accept these patients, even if their capacity is exceeded.

   45. Sometimes there is not enough time to carry out initial checks on all those arriving at the port, and checks therefore have to be continued at the reception centres. Emphasis has been placed on the need also to achieve maximum standardisation of the procedures used at the centres.

   46. The most common problems are: sea sickness, disorders of the upper respiratory tract, burns (fuel, sea water, sun or a combination of the three), dehydration, generalised pain (due to posture in the boat), psychological disorders or acute stress (because of the high risk of losing one's life during the crossing). Some people arriving from Libya were suffering from acute stress even before starting the crossing. New arrivals are extremely vulnerable people who may have suffered physical and/or psychological violence and their trauma is sometimes due to the way they have been treated in Libya. There are also many pregnant women who require closer examination. Some cases of tuberculosis have been detected. The persons concerned are immediately placed in quarantine in a hospital.

   47. Only a general evaluation is made of the state of health of new arrivals in Lampedusa. An individual assessment is not possible on the island and is carried out elsewhere after transfer. Anyone wishing to be examined can be, and no request to this effect is refused. A regular inspection of the sanitary facilities and food at the centres is carried out by the Head of the Palermo Health Unit.

   48. MSF and the Red Cross voiced concerns regarding health conditions in the centres when they are overcrowded. It was also pointed out that the Tunisians were separated from the other new arrivals by a closed barrier and did not have direct access to the reception centre's medical teams.

   IX. Information about asylum procedures

   49. The UNHCR team provides new arrivals with basic information about existing asylum procedures, but it was stressed that Lampedusa was not the place to provide potential refugees and asylum seekers with exhaustive information on this subject. Relevant information and help with asylum application procedures are provided once the new arrivals have been transferred to other, less provisional reception centres elsewhere in Italy. If people express the wish to seek asylum, UNHCR passes on the information to the Italian police.

   50. However, when large numbers of people arrive at the same time (which is increasingly the case) and transfers are carried out very quickly, the new arrivals are sometimes not informed about their right to request asylum. They receive this information at the centre to which they are transferred. This shortcoming in the provision of information about access to international protection may present a problem insofar as people of some nationalities are liable to be sent straight back to their countries of origin. As a rule, however, new arrivals are not in a position to be provided immediately with detailed information about access to the asylum procedure. They have other priorities: they are exhausted and disoriented and want to wash, eat and sleep.

   X. Tunisians

   51. In the recent spate of arrivals, they were the first to arrive in Lampedusa in February 2011. These arrivals were problematical for several reasons. As stated above, this was because arrivals by sea had decreased significantly in 2009 and 2010, and the island's reception centres had been closed. Tunisian migrants therefore found themselves on the streets, in appalling conditions. When the centres re-opened, they were immediately saturated. The Tunisians were subsequently transferred to holding centres elsewhere in Italy, then, once these were saturated, to open reception centres designed for asylum-seekers.

   52. The fact that the vast majority of Tunisians are economic migrants and the difficulty of organising immediate returns to Tunisia, prompted the Italian authorities to issue a decree on 5 April 2011 granting them temporary residence permits valid for 6 months. Although 25 000 Tunisians had already arrived in Italy on that date, only 12 000 took advantage of this measure (the other 13 000 having already disappeared from the centres). The consequences of this measure are well-known: tensions with France and a serious re-assessment of freedom of movement in the Schengen area.

   53. On 5 April 2011, Italy signed an agreement with Tunisia providing for a certain number of daily returns of Tunisian migrants arriving in Italy after that date. The text of the agreement has never been made public, but quotas of between 30 and 60 returns per day have been mentioned. At the time of the Ad Hoc Sub-Committee's visit, returns to Tunisia were suspended.

   54. As a result of this suspension of returns, some 190 Tunisians were being held on the island at the time of the Ad Hoc Sub-Committee's visit. Some of them had been there for more than 20 days, in a closed centre inside the closed Contrada Imbriacola centre. Despite the authorities’ claim that the Tunisians were not detainees because they were not in cells, the members of the Sub-Committee found that the conditions to which they were subjected were similar to detention and deprivation of freedom.

   55. While the members of the Ad Hoc Sub-Committee appreciate the Italian authorities’ concern to contain this wave of irregular immigration from Tunisia, some rules have to be observed where detention is concerned. The Contrada Imbriacola centre is not a suitable holding facility for irregular migrants. In practice, they are imprisoned there without access to a judge. As already pointed out by the Parliamentary Assembly in its Resolution 1707 (2010), ‘detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review’. These criteria are not met in Lampedusa and the Italian authorities should transfer irregular migrants immediately to appropriate holding facilities, with the necessary legal safeguards, elsewhere in Italy.

   56. Another key point made in this resolution is access to information. All detainees must be informed promptly, in a language that they can understand, ‘of the essential legal and factual grounds for detention, their rights and the rules and complaints procedure in detention’. While it is true that the Tunisians interviewed by the Ad Hoc Sub-Committee were perfectly aware that they had entered Italian territory illegally (in fact, it was not the first attempt for some of them and a number had already been sent back to Tunisia on previous occasions), the same is not true of information about their rights and procedures. The Italian authorities themselves were unable to tell the Ad Hoc Sub-Committee when returns to Tunisia would resume. As well as being a significant stress factor, this uncertainty highlights the inappropriateness of holding Tunisians on Lampedusa for long periods without access to a judge.

   57. As mentioned earlier, on 20 September a fire severely damaged the main reception centre. It is reported that Tunisian migrants carried out the arson in protest to their detention conditions and their forthcoming forced return to Tunisia. It should be noted that on 20 September, more than 1 000 Tunisians were kept in detention on the island, 5 times more than at the time of the visit of the ad-hoc Sub-Committee.

   58. With less than 200 Tunisians on the island, the ad hoc Sub-Committee was already not allowed to visit the closed part of the reception centre in which the Tunisians were kept. The authorities informed the members of the ad hoc Sub-Committee that for security reasons such a visit was not possible. They reported tensions inside this part of the Centre, as well as attempt of self harm by some of the Tunisians.

   59. Considering that the authorities were already worried by a tense situation with less than 200 Tunisians in the Centre, the question occurs as to why more than 1 000 were kept in this very Centre on 20 September. As a matter of fact, this centre is neither designed nor legally designated as a detention centre for irregular migrants.

   …

   XIV. A disproportionate burden for the island of Lampedusa

   77. The inadequate and belated management of the crisis early 2011 as well as the recent events will unquestionably have irreparable consequences for the inhabitants of Lampedusa. The 2011 tourist season will be a disaster. Whereas 2010 had seen a 25% increase in the number of visitors, from February 2011 onwards all advance bookings were cancelled. At the end of May 2011, none of the island's hotels had a single booking. Tourism industry professionals conveyed their feeling of helplessness to the Ad Hoc Sub-Committee. They had incurred expenditure on renovating or improving tourist facilities using the money paid for advance bookings. They had had to repay these sums when the bookings were cancelled and now find themselves in a precarious position, in debt and with no prospect of little money coming in for the 2011 season.

   78. The members of the Ad Hoc Sub-Committee also saw the work involved in cleaning and in removal of the boats (or what remains of them, which is clogging up the harbour) and the potential danger that these boats or wrecks pose to water quality around the island, which has to meet strict environmental standards. These operations are also very costly (half a million euros for the 42 boats still afloat at the time of the visit, not to mention the 270 wrecks littering the island). Steps have been taken by the civil protection department to ensure that the boats are dismantled and any liquid pollutants are pumped out.

   79. The dilapidated state of these boats reflects the degree of despair felt by people who are prepared to risk their lives crossing the Mediterranean on such vessels. The coastguards told the Ad Hoc Sub-Committee that only 10% of the boats arriving were in a good state of repair.

   80. During the delegation's visit, representatives of the island's inhabitants (in particular people representing the hotel and restaurant trade) and the Mayor of Lampedusa put forward their ideas for remedying this disaster for the local economy. At no time did they say that they no longer intended to take in people arriving by boat - on the contrary. They did however ask for fair compensation for the losses entailed by their island's role as a sanctuary.

   81. They therefore drew up a document containing several proposals, which they forwarded to the delegation. The key proposal is for the island to be recognised as a free zone. The delegation took due note of this proposal and of that concerning a one-year extension of the deadline for the inhabitants’ tax payments. While recognising that these matters fall outside its mandate, the Ad Hoc Sub-Committee calls on the relevant Italian authorities to consider these requests in view of the heavy burden borne by the island and its inhabitants in the face of the influx of irregular migrants, refugees and asylum-seekers arriving by sea.

   XV. Conclusions and recommendations

   …

   92. On the basis of its observations, the Ad Hoc Sub-Committee calls on the Italian authorities:

   1. (i) to continue to comply immediately and without exception with their obligation to rescue persons in distress at sea and to guarantee international protection, including the right of asylum and nonrefoulement;

   2. (ii) to introduce flexible measures for increasing reception capacities on Lampedusa;

   3. (iii) to improve conditions at the existing centres, and in particular the Loran base, while ensuring as a matter of priority that health and safety conditions meet existing standards – even when the centres are overcrowded – and carrying out strict and frequent checks to ensure that the private company responsible for running the centres is complying with its obligations;

   4. (iv) to ensure that new arrivals are able to contact their families as quickly as possible, even during their stay on Lampedusa, particularly at the Loran base, where there are problems in this regard;

   5. (v) to provide appropriate reception facilities for unaccompanied minors, ensuring that they are not detained and are kept separate from adults;

   6. (vi) to clarify the legal basis for the de facto detention in the reception centres in Lampedusa;

   7. (vii) where Tunisians in particular are concerned, only to keep irregular migrants in administrative detention under a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review;

   8. (viii) to continue to guarantee the rapid transfer of new arrivals to reception centres elsewhere in Italy, even if their number were to increase;

   9. (ix) to consider the requests by the population of Lampedusa for support commensurate with the burden it has to bear, particularly in economic terms;

   10. (x) not to conclude bilateral agreements with the authorities of countries which are not safe and where the fundamental rights of the persons intercepted are not properly guaranteed, as in Libya.”

C. Amnesty International

1. 50. On 21 April 2011 Amnesty International published a report under the title “Amnesty International findings and recommendations to the Italian authorities following the research visit to Lampedusa and Mineo”. The relevant passages of the report read as follows:

   “A humanitarian crisis of the Italian authorities’ own making

   …

   Since January 2011, there has been an increasing number of arrivals on Lampedusa from North Africa. As of 19 April, over 27,000 people had arrived in Italy, mostly on the small island. Despite the significant increase in arrivals, and the predictability of ongoing arrivals in light of unfolding events in North Africa, the Italian authorities allowed the large number of arrivals on Lampedusa to accumulate until the situation on the island became unmanageable. Lampedusa is dependent on the mainland for provision of almost all basic goods and services and is not equipped to be a large reception and accommodation centre, albeit it does have the basics to function as a transit centre for smaller numbers of people.

   …

   Lack of information about or access to asylum procedures

   Given that, at the time of Amnesty International's visit on the island, UNHCR estimated that there were around 6,000 foreign nationals on Lampedusa, the number of people tasked with providing information regarding asylum was totally inadequate. As far as Amnesty International could determine, only a handful of individuals were providing basic information regarding asylum procedures, which was totally inadequate given the number of arrivals. Further, those arriving were provided with only a very brief medical assessment and a very basic screening. Moreover, there appeared to be an assumption that all Tunisian arrivals were economic migrants.

   The fact that, at the time of Amnesty International's visit, foreign nationals had not been given proper information about access to asylum procedures, and were not being properly identified or screened, is a particular concern. The delegation spoke with people who had been given no, or very inadequate, information about asylum processes; in many cases they had been given no information about their situation at all. They had not been told how long they would have to stay on the island or what their eventual destination would be once moved off the island. Given that many of those arriving on Lampedusa had already endured extremely dangerous sea voyages, including some whose fellow travellers had drowned at sea, the appalling conditions on the island and the almost total absence of information were clearly leading to considerable anxiety and mental stress.

   In Amnesty International's view the asylum and reception systems had completely broken down due to the severe overcrowding caused by the total failure to organize timely and orderly transfers off the island.

   Conditions in the ‘Centres’ of the island

   In Lampedusa, the Amnesty International delegation visited both the main centre at Contrada Imbriacola, registering and accommodating male adults, mainly from Tunisia, and the Base Loran Centre, accommodating children and new arrivals from Libya.

   The main centre at Contrada Imbriacola is equipped to function as a transit centre for relatively small numbers of people; its full capacity is just over 800 individuals. On 30 March, Amnesty International delegates spoke with people being accommodated at the centre, as they entered and exited. The delegation was not able to access the centre itself at that time, but was given access the following day when the centre had just been emptied, as all individuals were being moved off the island.

   Those who had been living at the centre described appalling conditions, including severe overcrowding and filthy, unusable sanitary facilities. Some people told Amnesty International delegates that they had chosen to sleep on the streets rather than in the centre because they considered it so dirty as to make it uninhabitable. Amnesty International subsequently spoke to the centre's Director who confirmed the overcrowding stating that, on 29 March, it accommodated 1,980 people, more than double its maximum capacity.

   Although Amnesty International was only able to visit the centre after it had been emptied, the conditions that the delegation witnessed corroborated the reports of former inhabitants. Notwithstanding an ongoing clean-up operation at the time of the visit, there was an overwhelming smell of raw sewage. The remains of makeshift tents were observed in the centre. Piles of refuse were still evident around the centre.

   …

   COLLECTIVE SUMMARY REMOVALS, REPORTEDLY OF TUNISIAN NATIONALS, FROM LAMPEDUSA, FROM 7 APRIL 2011 ONWARDS, FOLLOWING THE SIGNING OF AN AGREEMENT BETWEEN THE ITALIAN AND TUNISIAN AUTHORITIES

   Amnesty International is extremely concerned by the enforced removal that began on 7 April from Lampedusa, following the recent signing of an agreement between the Tunisian and Italian authorities. At the time of writing these forcible returns were ongoing and had reportedly been carried out twice a day by air since 11 April.

   On 6 April, the Italian Ministry of Interior announced that Italy had signed an agreement with Tunisia pursuant to which the latter committed itself to strengthening border controls with a view to preventing departures, and to accepting the speedy readmission of people who had recently arrived and who will be arriving in Italy. Amnesty International is particularly concerned that, according to the above-mentioned announcement, Tunisian migrants arriving onto Italian shores may be ‘repatriated directly’ and with ‘simplified procedures’.

   In the light of this announcement, and given, in particular, Amnesty International's findings in relation to the total inadequacy of asylum procedures on Lampedusa, the organization believes that those people who have been subjected to ‘direct repatriations’ following ‘simplified procedures’ have been victims of collective summary removals.

   As far as Amnesty International could ascertain, people have been removed from the island within one or two days of arrival. Thus, it appears highly unlikely that they would have had access to any meaningful or adequate opportunity to assert that they should not be returned to Tunisia on international protection or other grounds. In the circumstances those removals would amount to summary expulsions (cf. the judgments of the European Court of Human Rights in the case of Hassanpour-Omrani v Sweden and Jabari v Turkey). Such practices are strictly prohibited under international, regional and domestic human rights and refugee law and standards. Additionally human rights and refugee law and standards require that the removing State must provide an effective remedy against removal. Removing people without giving them the chance of exercising their right to challenge their removal through an effective procedure gives rise per se to a human rights violation. This is independent of whether removal would place the individuals concerned at a real risk of serious human rights violations, which, in turn, would constitute a breach of the non-refoulement principle.

   …”

A. Chamber Judgment

1. 56. The Chamber began by finding that the applicants had been deprived of their liberty within the meaning of Article 5 § 1 of the Convention. The applicants’ allegation that they had been prohibited from leaving the CSPA and the ships Vincent and Audace was not in dispute (see paragraphs 46-51 of the Chamber judgment).

2. 57. The Chamber then took the view that the deprivation of liberty imposed on the applicants fell under sub-paragraph (f) of the first paragraph of Article 5. However, it had no legal basis in Italian law. In that connection, the Chamber observed that Italian law did not provide for the detention of migrants placed in a CSPA. In addition, in his decision of 1 June 2012, the Palermo preliminary investigations judge had stated that the Agrigento police authority had merely registered the presence of the migrants in the CSPA without taking decisions ordering their detention. The Chamber explained that the existence of a practice of de facto detention of migrants in Italy had been confirmed by the reports of the Senate's Special Commission and the PACE Ad Hoc Sub-Committee. The April 2011 agreement between Italy and Tunisia had not been accessible to those concerned and its consequences had therefore been unforeseeable. In the Chamber's view, it could not be established that the agreement provided for satisfactory safeguards against arbitrariness. The Chamber concluded in the light of the foregoing that the applicants’ deprivation of liberty had not been “lawful” within the meaning of Article 5 § 1 of the Convention and that there had been a violation of that provision in the present case (paragraphs 66-73 of the Chamber judgment).

B. The Government's Objection to the Applicability of Article 5 § 1 of the Convention

C. Merits

A. Chamber Judgment

1. 110. The Chamber observed that the applicants had most probably been made aware of their status as irregular migrants but found that basic information as to the legal status of a migrant did not satisfy the requirements of Article 5 § 2 of the Convention, under which the legal and factual grounds for the deprivation of liberty had to be notified to the person concerned. The Chamber further noted that the Government had failed to produce any official document addressed to the applicants containing such information. Moreover, the refusal-of-entry orders, which made no mention of the applicants’ detention, were apparently notified only on 27 and 29 September 2011, respectively, whereas the applicants had been placed in the CSPA on 17 and 18 September. Thus they had not been provided with the information “promptly” as required by Article 5 § 2. The Chamber thus concluded that there had been a violation of this provision (see paragraphs 82-85 of the Chamber judgment).

B. The Parties’ Submissions

C. Third-Party Intervention

1. 114. The McGill Centre observed that the right to be informed of the reason for detention was necessary in order to be able to challenge the lawfulness of the measure. The United Nations working group on arbitrary detention required that the information given to the detainee at the time of his or her arrest had to explain how the detention could be challenged. The Centre added that the lawfulness of the detention had to be open to regular review when it was extended.

D. The Court's Assessment

A. The Chamber Judgment

1. 124. The Chamber found that, since the applicants had not been informed of the reasons for their deprivation of liberty, their right to have its lawfulness decided had been deprived of all effective substance. This consideration sufficed for the Chamber to find that there had been a violation of Article 5 § 4 of the Convention. It additionally observed that the refusal-of-entry orders did not mention the legal or factual basis for the applicants’ detention and that the orders had been notified to the applicants shortly before their return by plane, and therefore at a time when their deprivation of liberty had been about to end. Accordingly, even assuming that the lodging of an appeal against those orders with the Justice of the Peace could be regarded as affording an indirect review of the lawfulness of the detention, such an appeal could not have been lodged until it was too late (see paragraphs 95-98 of the Chamber judgment).

B. The Parties’ Submissions

C. The Court's Assessment

A. The Chamber Judgment

1. 137. The Chamber began by noting that, following the events surrounding the “Arab Spring”, in 2011 the island of Lampedusa had been facing an exceptional situation characterised by mass arrivals of migrants and a humanitarian crisis, burdening the Italian authorities with many obligations and creating organisational and logistical difficulties (see paragraphs 124-27 of the Chamber judgment). However, in the Chamber's view, those factors could not release the respondent State from its obligation to secure to the applicants conditions of confinement that were compatible with respect for their human dignity, having regard to the absolute nature of the Article 3 rights (see paragraph 128 of the Chamber judgment).

2. 138. The Chamber then found it appropriate to deal separately with the conditions in the CSPA and on the ships (see paragraph 129 of the Chamber judgment). As to the first situation, it took the view that the applicants’ allegations about the overcrowding problem and general insalubrity of the CSPA were corroborated by the reports of the Senate's Special Commission, Amnesty International and the PACE Ad Hoc Sub-Committee, thus finding a violation of Article 3 of the Convention, in spite of the short duration of their confinement – between two and three days (see paragraphs 130-36 of the Chamber judgment).

3. 139. The Chamber reached the opposite conclusion as to the applicants’ detention on the ships. It observed that the applicants had been held on the ships for between six and eight days, and that the allegations of poor conditions had been at least partly contradicted by the decision dated 1 June 2012 of the Palermo preliminary investigations judge, whose findings were in turn based on the observations of a member of parliament who had visited the ships and had talked to some of the migrants. In the Chamber's view, the fact that the MP had been accompanied by the deputy chief of police and police officers did not, in itself, cast doubt on his independence or on the veracity of his account. The Chamber thus found that there had been no violation of Article 3 under this head (see paragraphs 137-44 of the Chamber judgment).

B. The Parties’ Submissions

C. Third-Party Intervention

1. 157. The Coordination Française pour le droit d'asile, a coalition which submitted written comments on behalf of four associations (Avocats pour la défense des droits des étrangers, Groupe d'information et de soutien des immigré.e.s (GISTI), Ligue des droits de l'homme et du citoyen and the International Federation for Human Rights (Fédération internationale des ligues des droits de l'Homme – FIDH)), asked the Grand Chamber to “solemnly uphold” the Chamber judgment. It submitted that it was necessary to take into account the vulnerability of the migrants, and particularly those who had endured a sea crossing, in assessing the existence of treatment contrary to Article 3 of the Convention. It acknowledged that the Court had rarely found a violation of that Article in cases of short-term detention, and only in the presence of aggravating circumstances. However, the vulnerability of the migrants, combined with conditions of detention that impaired their human dignity, was sufficient for a finding that the level of severity required by Article 3 had been reached. This had been confirmed by the case-law developed by the Court in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), by the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and by the observations of the UNHCR. Moreover, conditions of detention were a major factor in the deterioration of the mental health of migrants.

D. The Court's Assessment

A. Chamber Judgment

1. 213. The Chamber noted that the applicants had been issued with individual refusal-of-entry orders, but that those orders nevertheless contained identical wording and the only differences were to be found in their personal data. Even though the applicants had undergone an identity check, this was not sufficient in itself to rule out the existence of a collective expulsion within the meaning of Article 4 of Protocol No. 4. In addition, the refusal-of-entry orders did not contain any reference to the personal situations of the applicants and the Government had failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place. The Chamber also took account of the fact that a large number of individuals of the same origin, around the time of the events at issue, had been subjected to the same outcome as the applicants. It observed that the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned. Those elements sufficed for the Chamber to find that the applicants’ expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached (see paragraphs 153-58 of the Chamber judgment).

B. The Parties’ Submissions

C. Third-Party Intervention

D. The Court's Assessment

A. Chamber Judgment

1. 257. The Chamber began by considering that, to the extent that the applicants relied on Article 13 in conjunction with Article 5, their complaint was covered by the Court's findings under Article 5 § 4 (see paragraph 161 of the Chamber judgment).

2. 258. It went on to find a violation of Article 13 taken together with Article 3. It observed that the Government had not indicated any remedies by which the applicants could have complained about the conditions of their accommodation in the CSPA or on the ships. Moreover, an appeal to the Justice of the Peace against the refusal-of-entry orders would have served merely to challenge the lawfulness of their removal to Tunisia, and those orders had been issued only at the end of their period of confinement (see paragraphs 168-70 of the Chamber judgment).

3. 259. In addition, the Chamber noted that in the context of an appeal against the refusal-of-entry orders, the Justice of the Peace could assess their lawfulness in the light of domestic law and the Italian Constitution. The Chamber found that the applicants could thus have complained that their expulsion was “collective” in nature and that there was nothing to suggest that such a complaint would have been disregarded by the judge. Nevertheless, the orders expressly stipulated that the lodging of an appeal with the Justice of the Peace would not have suspensive effect, and this appeared to run counter to the case-law set out by the Grand Chamber in its De Souza Ribeiro v. France judgment ([GC], no. 22689/07, § 82, ECHR 2012). On that basis the Chamber found a violation of Article 13 taken together with Article 4 of Protocol No. 4 (see paragraphs 171-73 of the Chamber judgment).

B. The Parties’ Submissions

C. Third-Party Intervention

1. 265. The AIRE Centre and ECRE argued that, even in the absence of an express indication to that effect, the Return Directive (see paragraph 41 above) and the Schengen Borders Code, read in the light of the Convention and the EU Charter of Fundamental Rights, should be interpreted to mean that in the event of collective expulsion, remedies against removal should have automatic suspensive effect.

D. The Court's Assessment

1. 266. The Court would begin by observing, as the Chamber did, that, according to its settled case-law, Article 5 § 4 of the Convention provides a lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II, and Ruiz Rivera v. Switzerland, no. 8300/06, § 47, 18 February 2014). In the present case, the facts giving rise to the applicants’ complaint under Article 13 of the Convention in conjunction with Article 5 are identical to those already examined under Article 5 § 4, and are thus covered by the Court's findings under the latter provision (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 60, Series A no. 77, and Chahal, cited above, §§ 126 and 146).

2. 267. It remains to be examined whether there has been a violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4.

A. Damage

1. 283. The applicants claimed 65,000 euros (EUR) each in respect of the non-pecuniary damage that they alleged to have sustained. They argued that this amount was justified on account of the gravity of the violations of which they were victims. They requested that this sum be paid into their own Tunisian bank accounts.

2. 284. The Government took the view that the applicants’ claims for just satisfaction were “unacceptable”.

3. 285. Having regard to the particular circumstances of the case and to the conclusions it has reached as to the applicants’ various complaints, the Court finds that each applicant should be awarded EUR 2,500 in respect of non-pecuniary damage, amounting to a total of EUR 7,500 for all three applicants.

B. Costs and Expenses

1. 286. The applicants also claimed EUR 25,236.89 for the costs and expenses incurred by them before the Court. That sum covered: the travel expenses of their representatives for a visit to Tunis (EUR 432.48); the travel expenses of their representatives for attendance at the Grand Chamber hearing (EUR 700); the translation of the observations before the Chamber (EUR 912.03) and before the Grand Chamber (EUR 1,192.38); the consultation of a lawyer specialising in international human rights law (EUR 3,000) and a lawyer specialising in immigration law (EUR 3,000); and the fees of their representatives in the proceedings before the Court (in total, EUR 16,000). The applicants’ representatives stated that they had advanced those expenses and requested that the sum awarded be paid directly into their respective bank accounts.

2. 287. The Government submitted no observations on this point.

3. 288. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers excessive the total sum claimed for the costs and expenses incurred in the proceedings before it (EUR 25,236.89). It decides to award EUR 15,000 under that head to the applicants jointly. That sum is to be paid directly into the bank accounts of the applicants’ representatives (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013).

C. Default Interest

1. 289. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

I. No Violation of Article 3 of the Convention on Account of the Conditions in Which the Applicants were Held in the Contrada Imbriacola CSPA

1. 4. As to the conditions in which the applicants were held in the Contrada Imbriacola CSPA, the Chamber first noted that, on account of the events surrounding the “Arab Spring”, the island of Lampedusa had had to deal with an exceptional situation in 2011, characterised by significant arrivals of migrants and a humanitarian crisis, thus placing many obligations on the Italian authorities and creating organisational and logistical difficulties (see paragraphs 124-27 of the Chamber judgment). However, in the Chamber's view those factors could not release the respondent State from its obligation to guarantee that the conditions of the applicants’ detention were compatible with the principle of respect for their human dignity, having regard to the absolute terms of Article 3 of the Convention (see paragraph 128 of the Chamber judgment). The Chamber then took the view that the reports of the Italian Senate's Special Commission, of Amnesty International and of the PACE Ad Hoc Sub-Committee corroborated the applicants’ allegations about the overcrowding and general lack of hygiene in the CSPA, hence the finding of a violation of Article 3 of the Convention in spite of the short length – two or three days – of the applicants’ stay in the centre (see paragraphs 130-36 of the Chamber judgment).

2. 5. Having reconsidered the situation in the light of the Grand Chamber's deliberations, I now believe that it is true that, in view of the exceptional nature of the situation and other factors such as the applicants’ young age and good health, and especially the brevity of the period in which they were exposed to the undeniably difficult living conditions in the Contrada Imbriacola CSPA, the solution adopted by the majority should be approved. It is particularly consistent with the Court's solution in the case of Aarabi v. Greece (no. 39766/09, §§ 42-51, 2 April 2015), concerning the detention pending removal of a young Lebanese migrant, during which he had been held for a very short period (11 to 13 July 2009) on coastguard premises on the island of Chios, and in other facilities (including thirteen days at the Mersinidi detention centre, which had not been criticised in international reports in respect of the relevant period; and a report for a subsequent period had not, in any event, mentioned any problems of hygiene).

3. 6. The present judgment clearly highlights the situation of extreme difficulty facing the Italian authorities at the relevant time, on account of an exceptional influx of migrants and complications resulting from the revolt in the CSPA.

4. 7. Therefore, as stated by the Grand Chamber, while the constraints inherent in such a crisis cannot, in themselves, justify a breach of Article 3, it would certainly be artificial to examine the facts of the case without taking into account the general context.

5. 8. With that premise in mind, I fully share the Grand Chamber's analysis and findings on this point (see, in particular, paragraphs 187-201 of the judgment).

II. No Violation of Article 4 of Protocol No. 4 to the Convention

1. 9. As to the question whether, in the present case, the measure taken constituted a collective expulsion, as prohibited by Article 4 of Protocol No. 4 to the Convention, the Grand Chamber has replied in the negative.

2. 10. The Chamber, for its part, noted that the applicants had been returned on the basis of individual refusal-of-entry orders, but that those orders were drafted in identical terms, the only differences being the personal details. In the Chamber's view, even though the applicants had undergone an identification procedure, that did not, in itself, show that there had not been a collective expulsion within the meaning of Article 4 of Protocol No. 4. In addition, the Chamber observed that the refusal-of-entry orders did not contain any reference to the applicants’ personal situations and that the Government had not produced any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place. The Chamber also took account of the fact that a large number of individuals of the same origin had, in the relevant period, been returned in the same manner as the applicants, and it pointed out that the bilateral agreement of April 2011 between Italy and Tunisia – which had not been made public – provided for the readmission of irregular migrants from Tunisia through simplified procedures, merely on the basis of the identification by the Tunisian consular authorities of the individuals concerned. The Chamber found these elements to suffice for it to reach the conclusion that the expulsion was collective in nature.

3. 11. The factors highlighted by the Chamber are not insignificant, because the mechanism in place enabled the authorities, in substance, to remove the applicants merely on the basis of their being part of a group, without specifically inviting them to submit any reasons that might support an application for international protection.

4. 12. However, I would observe, firstly, that I find the analysis of the facts by the Grand Chamber to be reasonable. The judgment notes that upon their first identification, which, according to the Government involved the taking of photographs and fingerprints (see paragraph 224 of the judgment), as well as at any other time during their detention in the CSPA and on board the ships, the applicants had an opportunity to inform the authorities of any reasons that might justify their stay in Italy or preclude their return. The judgment also emphasises the fact that, as the Government (see paragraph 225 of the judgment) and the Palermo preliminary investigations judge (paragraphs 25 and 27) pointed out, without this being denied by the applicants, seventy-two migrants in the Lampedusa CSPA at the time of the fire had expressed their intention to submit an asylum application, thereby halting the return procedure concerning them and resulting in their transfer to other reception centres. It is true that the applicants declared that their personal circumstances did not enable them to seek international protection (see paragraph 222 of the judgment), but, as noted by the Grand Chamber, the possibility of lodging an asylum application in the context of an expulsion procedure is a paramount safeguard and there is nothing to suggest that the Italian authorities, which were prepared to listen to migrants wishing to invoke the non-refoulement principle, would have remained unresponsive if they had been made aware of other legitimate and legally arguable impediments to the applicants’ removal.

5. 13. Secondly, the Chamber's main concern was to protect the applicants from an expulsion that had not been preceded by a stringent examination of their personal situations, but the following comments can be seen to address that concern.

6. 14. In the light of the Grand Chamber's deliberations, I can agree with the level of protection laid down in paragraph 248 of the judgment, where it is stated that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; and that the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State.

7. 15. I thus approve the finding that there has been no violation of Article 4 of Protocol No. 4 to the Convention.

III. No Violation of Article 13 of the Convention Taken Together with Article 4 of Protocol No. 4

1. 16. As to the complaint alleging a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4, the majority in the Chamber, finding a violation of that provision, noted that in the context of an appeal against the refusal-of-entry orders, the Justice of the Peace was entitled to assess the lawfulness of the orders in the light of domestic law and the Italian Constitution. The Chamber concluded that the applicants could have complained about the collective nature of their expulsion and that there was nothing to show that such a complaint would have been disregarded by the Justice of the Peace. Nevertheless, according to the Chamber, an appeal to the Justice of the Peace would not have had suspensive effect, and that appeared to run counter to the case-law set out by the Grand Chamber in De Souza Ribeiro v. France ([GC], no. 22689/07, § 82, ECHR 2012).

2. 17. Following the Grand Chamber's deliberations, I have no difficulty acknowledging that the Chamber's reading of the De Souza Ribeiro v. France judgment went beyond what was required by that case-law.

3. 18. As to the lack of suspensive effect of the procedure in question, the Grand Chamber notes that while De Souza Ribeiro seemed to establish a need for “a remedy with automatic suspensive effect … for complaints under Article 4 of Protocol No. 4”, the last sentence of paragraph 82 of that judgment has to be understood in the light of the whole paragraph, which established an obligation for States to provide for such a remedy where the person concerned alleged that the enforcement of the expulsion would expose him or her to a real risk of ill-treatment in breach of Article 3 of the Convention or of a violation of his or her right to life under Article 2, on account of the irreversible nature of the harm that might occur if the risk materialised. The Grand Chamber further notes that the last statement in paragraph 82 of the De Souza Ribeiro judgment is corroborated by the citation of the judgments in Čonka v. Belgium (no. 51564/99, §§ 81-83, ECHR 2002-I) and Hirsi Jamaa and Others v. Italy ([GC], no. 27765/09, § 206, ECHR 2012). However, those two cases concerned situations in which the applicants had sought to alert the national authorities to the risk that they might be subjected to treatment in breach of Article 3 of the Convention in the destination countries, and not to any allegation that their expulsion from the host State was collective in nature.

4. 19. I share that reading of the De Souza Ribeiro case-law and the Grand Chamber's conclusion that where, as in the present case, an applicant does not allege that any violations of Articles 2 and 3 of the Convention could arise in the destination country, removal from the respondent State would not expose him or her to potentially irreversible harm and the existence of a suspensive remedy is not therefore necessary to meet the requirements of Article 13 of the Convention taken together with Article 4 of Protocol No. 4.

   * * *

   In conclusion, I believe that this important judgment provides balanced and reasonable answers to the difficult questions raised in the present case, and contributes to establishing the Court's case-law on key points in the context of an unprecedented migration crisis which will certainly continue to cause applications to be sent to Strasbourg. Such applications on migration matters, whether they are already pending or will be arriving henceforth, will be examined by the Court on the basis of particularly precise and clear jurisprudential principles, especially now that the present judgment has made a significant contribution to the consolidation of the relevant case-law.

A. Whether the Simplified Procedure for Readmission, Provided for in Agreements Between Italy and Tunisia, was Followed in the Present Case

1. 4. It is clear from the judgment (paragraph 250) that the second identification that the applicants underwent was carried out before they boarded the planes for Tunis by the Tunisian Consul and not by a representative of the Italian authorities. That was precisely in accordance with the simplified procedure, on the basis of the mere identification of the person concerned by the Tunisian consular authorities, as provided for in bilateral agreements with Tunisia and as mentioned in the above quoted passage from the Chamber judgment (§ 156).

2. 5. In the procès-verbal of a meeting between the Minister of the Interior of the Tunisian Republic and the Minister of the Interior of the Italian Republic, at Tunis on 4 and 5 April 2011 (Annex 2ter to the referral request, § 2), it was agreed, inter alia, that “[t]he nationality of those Tunisian nationals who arrive in Italy after the signing of this procès-verbal will be verified by a simplified method at their place of arrival in Italy”. The 2011 agreement refers to and complements an earlier bilateral agreement, provided for in an Exchange of Notes of 6 August 1998 (note verbale, Annex 2 to the referral request). This more comprehensive text, under the heading “Readmission of nationals of the two countries” (Part II, § 1), states that it was agreed between the two countries as follows:

   “Each Party shall, at the request of the other Party and without further formalities, readmit into its territory any person who does not meet the conditions of entry or residence applicable in the requesting State, in so far as it has been or can be established by the identification procedure that the person concerned is a national of the requested State.”

   Under paragraph 5 of the same Part of the note verbale there was no mandatory obligation to conduct a personal interview, since this was apparently an exceptional measure at the discretion of the consular authority of the requested State (i.e. Tunisia, in the present case), with the aim of establishing the migrant's nationality:

   “If the consular authority of the requested State nevertheless considers it necessary notwithstanding all the means of identification provided for above, to hear the person concerned, in so far as is possible … Where it is possible to establish the person's nationality on the basis of that interview, the laissez-passer shall be issued forthwith.”

   Neither does the 2011 agreement refer to any mandatory interview, merely that the “readmission must in all circumstances take place in the presence of the Tunisian consular authority”.

3. 6. As is rightly mentioned in the applicants’ observations of 22 April 2016 (§ 64), they “were returned to Tunisia from Italy simply on the basis of their identification as Tunisian nationals and without proper examination of their personal situation”. This is also apparent from the admission of the Government in their request for referral to the Grand Chamber (§ 10), which reads as follows (all placed in emphasis in the original text):

   “10. Regard being had to the above agreements, the Government submit that the judgment is incoherent per se, in particular in terms of the interpretation and application of Article 4 of Protocol No. 4 prohibiting the ‘collective expulsion of aliens’, which was not violated in this case because the applicants – who were neither under arrest nor in custody – were returned under the simplified procedure provided for in the agreements mentioned above, as Judges Sajó and Vučinić rightly point out in their ‘partly dissenting opinion’ annexed to the Chamber judgment.”

4. 7. From the said bilateral agreements and the annexes to the note verbale, the texts of which are also attached to the Government's referral request, it is obvious that the purpose of the agreements was to reinforce cooperation between the two countries, by readmitting into their respective territories any person who did not meet the conditions of entry or residence, on the basis of nationality alone, without further formalities or a substantial personal interview and excluding the assistance of a lawyer. To the extent that any bilateral agreement does not require mandatory personal interviews for the collective expulsion of aliens, I believe that it violates the provisions of Article 4 of Protocol No. 4. Such a violation, with due respect, occurred in the present case, since these bilateral agreements were adhered to, instead of the provisions of Article 4 of Protocol No. 4, with the result that the competent authorities did not conduct any personal interviews. Since the bilateral agreement of 5 April 2011 had not been made public (see paragraph 37 of the judgment) and the applicants did not know why personal interviews were not conducted, the violation becomes even more striking. According to the case-law of this Court, States are considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 154, ECHR 2005-VI).

5. 8. There has never been any reservation or declaration by Italy regarding Article 4 of Protocol No. 4. The only reservation made by Italy to Protocol No. 4 concerned Article 3, which was not applicable in the present case, and, in any event, concerned only the royal family and had been withdrawn on 12 November 2012. The fact that Italy has made no reservation or declaration regarding collective expulsions of Tunisian nationals, on the basis of its bilateral agreements with Tunisia, did not enable Italy to proceed in the present case on the basis of these agreements rather than that of Article 4 of Protocol No. 4.

6. 9. As Professor James Crawford (Judge of the International Court of Justice) rightly observes, “collective expulsion of aliens is a serious breach of international law” (see James Crawford, “Chance, Order, Change: The Course of International Law”, Collected Courses of the Hague Academy of International Law, vol. 365, Leiden/Boston, 2013, p. 208, § 350). More specifically, he comments as follows:

   “In principle, a State has the right to determine who shall enter its territory, subject to a few legal restrictions. Among these, collective expulsion of aliens is a serious breach of international law, and Article 4 is expressed as an absolute and non-derogable prohibition. As such, it must be interpreted narrowly and precisely.”

B. Whether the Procedural Obligation to Conduct Personal Interviews Under Article 4 of Protocol No. 4 is Mandatory and Whether the Corresponding Procedural Right is Absolute

1. 10. The majority point out that “Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances”, and that “the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State” (paragraph 248 of the judgment). They also observe that “the applicants’ representatives both in their written observations and the public hearing …, were unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude their removal”. They continue by remarking that “[t]his calls into question the usefulness of an individual interview in the present case” (paragraph 253 of the judgment).

2. 11. I believe, however, that for the purposes of Article 4 of Protocol No. 4 the procedural obligation of the competent national authorities to conduct a personal interview is indispensable. This obligation would serve to fulfil the aim of the provision. It is clearly a safeguard to be applied without exception, and thus does not undermine the prohibition formulated in absolute terms. The prohibition of collective expulsion in that Article is, ultimately: (a) a prohibition of arbitrariness, and (b) a prohibition of discrimination. Because of their nature, collective expulsions of aliens are presumed to be carried out arbitrarily and in a discriminatory manner, unless, of course, it is guaranteed to each alien that the procedural obligation will be fulfilled by the State concerned.

3. 12. With all due respect, I am unable to follow the interpretation of Article 4 of Protocol No. 4 adopted by the majority, for the following reasons:

   1. (a) This interpretation departs from the Court's previously established case-law, according to which the aim of Article 4 of Protocol No. 4 is invariably to prevent States from being able to proceed with collective expulsions of aliens without examining, through the procedure of a personal interview, the individual circumstances of each one. In other words, this interpretation disregards the mandatory nature of the procedural obligation of the authorities to conduct personal interviews in all cases engaging Article 4 of Protocol No. 4. This may lead to: (i) giving the authorities the choice of deciding to abstain from upholding the rule of law, i.e., from the fulfilment of their said procedural obligation, at the expense of satisfying the principles of effectiveness and legal certainty; (ii) making the Convention safeguards dependent merely on the discretion of the police or the immigration authorities, against whom the allegation of a violation is directed, and thereby not only making the supervisory role of the Court difficult, but even undermining it and rendering it unnecessary; (iii) disregarding the need for aliens in a collateral expulsion case to be protected against any risk of arbitrariness or abuse of power; and (iv) discouraging, even aliens who are facing violations of Articles 2 and 3 of the Convention, from approaching the borders of European countries, when they know that their procedural safeguards remain at the discretion of the authorities.

   2. (b) It removes the burden of proof, which is on the State, to show that a personal interview has been conducted under Article 4 of Protocol No. 4, by reversing it and shifting it to the individual alien, who is supposed to prove that he or she would have a genuine and effective possibility of obtaining international or other legal protection, even though this is not required by Article 4 of Protocol No. 4.

   3. (c) It subjects the absolute procedural right enjoyed by an alien under Article 4 of Protocol No. 4, securing him or her protection from collective expulsion, to the condition that he or she must have a genuine and effective possibility of obtaining international or other legal protection. To put it differently, it places an implied exception or limitation on the said provision, rendering the guarantee inapplicable to any alien who does not present, to the satisfaction of the immigration authorities, an arguable legal claim to international or other legal protection.

   4. (d) It significantly limits the ambit of the prohibition formulated in absolute terms and the application of Article 4 of Protocol No. 4, both ratione personae and ratione materiae, thus contravening its purpose, object and effectiveness, and undermining the requisite level of protection. As will be shown below, the purpose of this provision is to prohibit, in absolute terms, the simultaneous indiscriminate expulsions of aliens who are members of the same group, merely on the basis of their membership in the group, or their religion or nationality, without the individual circumstances of each alien being taking into account by the competent authorities through the procedure of personal interviews. A personal interview is important because this is the best means of fulfilling the aim of Article 4 of Protocol No. 4 to avoid human herding, by way of indiscriminate collective expulsion, thus diminishing human dignity.

   5. (e) It subjects or subjugates the procedural obligation, which is at the heart of the ban on collective expulsion under Article 4 of Protocol No. 4, to the existence of a substantive obligation, which does not exist under the Article, with the effect that the former is negated. In other words, it does not take into account the fact that the procedural guarantee vanishes whenever a personal interview is not conducted, and the Court accepts the submission of the respondent State that the applicants did not have a substantive right to put forward arguments against the measure or that they did not submit any claim despite allegedly having the opportunity to do so. It overlooks the point that the absence of an explicit request for asylum or international protection should not release the State from its procedural obligation.

   6. (f) By limiting the application of Article 4 of Protocol No. 4 only to persons who have a genuine and effective possibility of obtaining international or other legal protection, the majority disregard the fact that this provision, unlike Article 2 § 1 of the same Protocol, which is confined only to persons lawfully resident within the territory of a State, applies whether the aliens entered the territory of a State lawfully or unlawfully, and if lawfully, whether or not they remain lawful entrants. As will be explained below, Article 4 of Protocol No. 4 applies mainly to aliens who have unlawfully entered the territory of a State.

   7. (g) Lastly, the said interpretation absolutely deprives Article 4 of Protocol No. 4 of its procedural guarantee, by taking away from the procedural right its shield of protection.

4. 13. The majority adopt the Government's view that the applicants really underwent a personal interview, even though the Chamber (see Chamber judgment, § 156) found that there was absolutely no evidence to support the Government's general contention that each situation had been assessed individually, and moreover, despite the fact that the Government did not challenge this finding by the Chamber in their referral request. The applicants rightly pointed out in their observations (cited above, § 80), that this failure by the Government to challenge the finding should have been seen by the Court as the Government's acceptance of the facts as presented in the Chamber judgment.

5. 14. Irrespective of what is said in the previous paragraph – to be explained in more detail below – the Government adduced no evidence that personal interviews had been conducted, but only raised general, vague, unproven and unconvincing allegations.

6. 15. It should be observed that the procedural guarantee of Article 4 of Protocol No. 4 applies only to cases of collective expulsion of aliens, and not to the case of an expulsion of an alien who entered the territory of a State not as a member or part of a group but alone (individual expulsion). On the contrary, Article 3 § 2 of Protocol No. 4 provides for the non-deprivation of the right of a person to enter and move within the territory of the State of which he or she is a national. So, in my view, the aim of Article 4 of Protocol No. 4 was to prohibit collective expulsion of aliens as such and not to guarantee, as the majority decide, that every alien who enters a State should at least be able to rely on international or other legal protection, or on the non-refoulement principle.

7. 16. In the applicants’ observations to the Court (cited above, § 127), they say – while at the same time hoping that it will not happen – that it “would be a serious and unjustified backward step in human rights protection in the field of expulsion”, for this Court, not “to confirm the principle that foreign nationals, whatever their legal status, can only be expelled or deported after the person concerned has been granted an individual interview with the authorities”. I believe this statement is correct, especially considering the evolutive or dynamic approach of the Court in relation to the interpretation of other provisions of the Convention. The Court has on many occasions held that the Convention is a “living instrument” and has given a broad interpretation, expanding the fundamental rights and freedoms. In the present case, however, the majority attach a restrictive interpretation to the essence of an absolute procedural right, contrary to the Court's approach to another absolute right, namely the right to be free from torture or inhuman or degrading treatment or punishment under Article 3 (see, inter alia, Tyrer v. the United Kingdom, 25 April 1978, § 81, Series A no. 26, and Bouyid v. Belgium [GC], no. 23380/09, § 90, ECHR 2015). Such an interpretation of Article 4 of Protocol No. 4 is, in my view, contrary to the wording and object of the relevant provision and departs from the previous case-law of the Court.

8. 17. The idea that the Convention is a living instrument, together with the principle of effectiveness (“effet pratique”, “ut res magis valeat quam pereat”), forming the “bedrock” of evolutive interpretation (as characterised by R.C.A. White and C. Ovey (eds) in Jacobs, White and Ovey, The European Convention on Human Rights (fifth edition, Oxford, 2010, pp. 73 et seq.), are particularly referred to by the Court in Hirsi Jamaa and Others v. Italy ([GC], no. 27765/09, § 175, ECHR 2012), when dealing with Article 4 of Protocol No. 4 as follows:

   “… account must be taken of the purpose and meaning of the provision in issue, which must themselves be analysed 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 (see, for example, Soering, cited above, § 102; Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45; X, Y and Z v. the United Kingdom, 22 April 1997, Reports 1997-II; V. v. the United Kingdom [GC], no. 24888/94, § 72, ECHR 1999-IX; and Matthews v. the United Kingdom [GC], no. 24833/94, § 39, ECHR 1999-I). 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 (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 136, ECHR 2005-XI).”

   Though the above passage, invoked by the applicants in their observations (cited above, § 81), concerns a different issue of interpretation of Article 4 of Protocol No. 4, a similar effective interpretation should be applied when it comes to the issue in question.

9. 18. The effectiveness of the provision of Article 4 of Protocol No. 4, like any other provision of the Convention, is ensured by taking into account its object and purpose in good faith. As the International Law Commission Report 1966 (Yearbook of the International Law Commission [YBILC], 1966, vol. II, p. 239, § 6) pertinently expounded:

   “… When a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation be adopted.”

   In my view, good faith and the objects and purposes of Article 4 of Protocol No. 4 require the need to conduct personal interviews invariably in all collective expulsion cases. Without doubt, States have an obligation to act in good faith in using their power to expel a group of aliens.

10. 19. One should also note in this respect what was said very profoundly by Professor Rudolf Bernhardt, a former President of the Court, in his article entitled “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights” (German Yearbook of International Law, vol. 42 (1999), 11 at p. 14):

    “These articles [31 and 32] of the Vienna Convention [on the Law of Treaties] are remarkable in several respects. Firstly, one principle of treaty interpretation, which was often invoked in older text books, is not even mentioned. Namely, the principle that treaties should be interpreted restrictively and in favor of State sovereignty, in dubio mitius. This principle is no longer relevant, it is neither mentioned in the Vienna Convention nor has it ever been invoked in the recent jurisprudence of international courts and tribunals. Treaty obligations are in case of doubt and in principle not to be interpreted in favor of State sovereignty. It is obvious that this conclusion can have considerable consequences for human rights conventions. Every effective protection of individual freedoms restricts State sovereignty, and it is by no means State sovereignty which in case of doubt has priority. Quite to the contrary, the object and purpose of human rights treaties may often lead to a broader interpretation of individual rights on the one hand and restrictions on State activities on the other.”

    Moreover, at page 16 he also made the following comment about the role of the object and purpose of a treaty:

    “The object and purpose of a treaty plays, as shown in previous quotations, a central role in treaty interpretation. This reference to object and purpose can be understood as entry into a certain dynamism. ”

11. 20. In Hirsi Jamaa and Others (cited above, § 177) it was clearly held as follows:

    “The Court has already found that, according to the established case-law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain [sic] aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority.”

    It appears from the above statement (especially from the absolute terms “without examining” and “without enabling”), which encapsulates the principle of the existing case-law to date, that the procedural obligation under Article 4 of Protocol No. 4 is mandatory, giving no discretion to the States not to exercise it (note the words “to prevent States being able to remove”, emphasis added). The right of all aliens in a collective expulsion scenario is an autonomous procedural right. The said provision and the relevant case-law do not go to the merits of the case or to the results of compliance with the procedural obligation. Besides, according to the above passage, an alien can put forward his or her arguments against the measure taken by the relevant authority and this does not apply only when there is an effective possibility of submitting arguments against expulsion, for example in an asylum procedure. Without a personal interview, as was the case here, there is automatically a violation of Article 4 of Protocol No. 4. It is immaterial what the applicants’ lawyers said in the oral hearing, namely that “the applicants’ individual circumstances did not enable them to rely on international protection or the non-refoulement principle” (see paragraph 222 of the judgment). That cannot, in my view, undermine the applicants’ case, because what was important for them was to have an interview and have the right to put forward their arguments against the measure taken, whether these arguments were valid or not, and whether or not they had any arguments at all, considering that they did not have, at the time, the assistance of a lawyer to explain their legal rights to them. Their lawyers in the oral hearing said that they were not in a position to say on which legal grounds their clients could have relied to justify their stay in Italy. And that was, of course, a genuine statement, since the applicants have not applied ex post facto for leave to remain in Italy or called for a remedy to that end. They have only challenged before the Court the failure by the Italian authorities to comply with their procedural obligation under Article 4 of Protocol No. 4.

12. 21. In the judgment (see paragraph 237) under the section “principles established in the Court's case-law”, it is rightly stated that:

    “According to the Court's case-law, collective expulsion is to be understood as ‘any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of reasonable and objective examination of the particular case of each individual alien of the group’ …”

    An examination cannot, of course, be reasonable and objective, as stated in this passage, without a personal interview conducted by the authorities.

13. 22. The prohibition of collective expulsion in Article 4 of Protocol No. 4 concerns only the procedure and not the substantive grounds for expulsion. Unlike Article 1 § 2 of Protocol No. 7, which makes provision for grounds unconditionally permitting an individual expulsion of aliens lawfully resident in the territory of a State (i.e. expulsion “necessary in the interest of public order” or “grounded on reasons of national security”), Article 4 of Protocol No. 4 does not contain a similar provision, but only a prohibition of collective expulsion.

14. 23. Even supposing that Article 4 of Protocol No. 4 were to guarantee, apart from a procedural right, also a substantive right, imposing correspondingly on the national authorities both a procedural and a substantive obligation, a failure to fulfil the procedural obligation would suffice to violate Article 4 of Protocol No. 4. This is the case regarding other provisions of the Convention, such as Articles 2, 3 and 8, on which the jurisprudence is clear, namely that these provisions guarantee both substantive and procedural rights and that the corresponding obligations of the State are separate, independent and autonomous. For instance, in Celniku v. Greece (no. 21449/04, §§ 54, 59 and 70, 5 July 2007) the Court found a violation of Article 2 of the Convention only under its procedural head, and not also under its substantive head.

15. 24. The applicants rightly argued in their observations (cited above, § 126) that their interpretation of Article 4 of Protocol No. 4 was in line with customary international law and the case-law of the Court of Justice of the European Union, to the effect that aliens have the right to express their views on the legality of their stay. This argument may receive support from the principle of “external coherence”, according to which “a treaty cannot be interpreted in vacuum, but must be considered as part of a wider legal system” (see 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”, Nordic Journal of International Law, vol. 79, no. 2 (2010), p. 271). It is to be noted that pursuant to Article 31 § 3(c) of the VCLT, “[t]here shall be taken into account, together with the context: … (c) Any relevant rules of international law applicable in the relations between the parties”.

16. 25. All the third parties which intervened in the proceedings before the Grand Chamber used cogent arguments in line with the applicants’ interpretation of Article 4 of Protocol No. 4. The Coordination Française pour le droit d'asile “took the view that the Chamber judgment fell squarely within the logic of the Court's case law … and was in phase with the relevant international practice …” (see paragraph 230 of the judgment). They further argued that: “The absence of an explicit request for asylum did not release the State from that obligation. The expulsion of migrants without thoroughly examining their individual situation would significantly increase the risk of a breach of the non-refoulement principle” (see paragraph 230 of the judgment). The McGill Centre pertinently observed that “[i]t could be seen from the Court's case-law that there was a presumption of ‘collective’ expulsion where there was an expulsion of aliens as a group. The State would then have a duty to show that it had guaranteed a fair and individual procedure to each expelled individual through a reasonable and objective examination of his or her specific situation” (paragraph 233 of the judgment). Lastly, the AIRE Centre and ECRE rightly argued as follows (paragraph 235 of the judgment):

    “… the fact that the State might generally be considered ‘a safe country’ was not conclusive of the assumption that it was safe for the return of everyone. An individual assessment had to be made before the return, and the fact that the applicants had not alleged that their return to Tunisia had exposed them to a risk of a violation of Articles 2 and 3 of the Convention was immaterial. … Moreover, the right of a migrant to be heard and to make known his or her views effectively before the adoption of an expulsion decision had been upheld by the CJEU in the Khaled Boudjlida and Sophie Mukarubega judgments …”

17. 26. One may conclude from the above that, for the obligation of a State to be fulfilled effectively under Article 4 of Protocol No. 4, it must first be given effect through the procedure of a personal interview.

C. Whether the Procedural Obligation for Conducting Personal Interviews Under Article 4 of Protocol No. 4 was in Fact Complied with in the Present Case

1. 27. As to the facts, the majority accept the Government's submission that there had been personal interviews with the applicants, carried out in the presence of an interpreter or cultural mediator, the records of which, however, had been destroyed by fire during a revolt, and reject the applicants’ claim that there had been no personal interviews at all. With due respect, the majority made this finding without considering that the burden of proof as to the existence of a personal interview was on the Government, which had produced no evidence to the Court, or that the Chamber had made a finding on this point, in favour of the applicants, which had not been challenged by the Government in their referral request.

2. 28. The majority consider plausible the explanation given by the Government that the applicants’ information sheets had been destroyed in the fire, as well as considering it reasonable to assume that, since a number of specialists worked at the Early Reception and Aid Centre (CSPA), these persons must have intervened to facilitate communication and mutual understanding between the migrants and the Italian authorities.

3. 29. Even assuming that the Government's submission that the documents in question were destroyed in the fire on 20 September 2011 was true, since the applicants were in Italy for at least a further week the Italian authorities should have conducted another interview and should have made a fresh record – an obligation which they signally failed to fulfil. On the contrary, the second identification prior to the applicants’ departure from Italy was carried out by a representative of a third State, and not by the Italian authorities (see paragraph 250 of the judgment). The Government did not give any explanation at all as to why their authorities had not proceeded with a second interview, since the records of the first interview had been destroyed by fire. Even assuming that the authorities had been facing some administrative difficulties at the material time on account of the revolt, they should have abstained from proceeding with the expulsions until they were able to repeat the personal interviews.

4. 30. In the relevant refusal-of-entry orders (see the text thereof in paragraph 19 of the judgment) only a reference to the identification of the applicants was made, without anything being said about a personal interview, and this is another strong indication, or even proof, that no such interview was conducted. The similarity between the orders, with their otherwise identical wording, generally reflects the failure to take account of the applicants’ personal circumstances.

5. 31. I believe that no reasonable assumption in favour of the Government's line of argument could be drawn from the fact that a number of specialists were working at the CSPA, as the majority accept. If there was an interview assisted by an interpreter or a cultural mediator, all of the persons involved in the interview should have been named by the Government and could have been made available to offer evidence about the interview and its context, but this was not even suggested. If the Government did not remember whether and in the presence of whom an interview was conducted, which seems to be the case, they could not logically and convincingly argue that, because, allegedly, there were interviews with all migrants, this might also have been the case for the applicants. One cannot base the proof of an alleged specific fact, in this case the alleged interviews of the applicants, on a general hypothesis as to a practice when, firstly, it is vague, uncertain and not particularly credible, and secondly, it might not have been applied in the specific case, for many reasons. A fact must, according to the rules of evidence and principles of logic, be specifically proved and cannot be supported only by generalities and uncertain assumptions. Not only must an interview be shown to have been conducted, but also, and, most importantly, its content must be proved. Thus, even if it were to be assumed that the applicants were asked some questions by the authorities, but the relevant details remain unknown, it could not be said with certainty that what occurred was a personal interview, and, most importantly, it would be impossible to know the answers that were given to the questions asked. Without a record and specific details, this Court would be unable to exercise its supervisory jurisdiction, as it would lack the opportunity to examine whether the procedural obligation of Article 4 of Protocol No. 4 was fulfilled.

6. 32. By analogy, according to the constant case-law of the Court, when there is no official record of an individual's arrest and ensuing detention, this failure or omission must in itself be considered a most serious shortcoming. More specifically, the absence of a record is considered to entail a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, securing the right to liberty and security. It discloses a most grave violation of that provision and is incompatible with the requirement of lawfulness and with the very purpose of Article 5 (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-III; and Kurt v. Turkey, 25 May 1998, § 125, Reports of Judgments and Decisions 1998-III). The lack of a proper record of an individual's arrest and detention is thus sufficient for the Court to find that there has been a violation of Article 5 § 1 (see Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV, and Menesheva, cited above, §§ 87-89). If this formality of keeping an official record is indispensable for the guarantee of a non-absolute right, as it is for the right under Article 5 § 1, one may wonder why such a formality should not, all the more so, be indispensable for the guarantee of an absolute procedural right, as is the right secured by Article 4 of Protocol No. 4.

7. 33. The Court should have adopted, regarding the issue of the personal interview of which no evidence was produced by the Government, the same approach to acceptance of evidence as that which it followed concerning the alleged conditions on the ships on which the applicants were placed. On the latter issue, the Court rightly declined to accept the applicants’ allegations, since, as it found, those allegations were “not based on any objective reports, merely their own testimony” (see paragraph 204 of the judgment).

8. 34. In the present judgment, emphasis is placed on the fact that “the applicants did not dispute the Government's submission that ninety-nine social operators, three social workers, three psychologists, and eight interpreters and cultural mediators worked at the CSPA …” (see paragraph 246). However, this alleged fact was irrelevant for the applicants in relation to their submission that they did not have a personal interview, as one cannot expect them to consider it important, for the purposes of their counter-argument, how many people were working at the CSPA at the material time and what they were doing. By the same logic, for a person who is a victim of a crime, it is immaterial how many policemen are working in the town where it is committed. His or her only concern might be that he or she was not protected by the police and that the police did not catch the perpetrator.

9. 35. It is important to underline that the Government were not even in a position to specify whether, during the alleged interview, there was an interpreter “or” a cultural mediator actually present (see paragraph 224 of the judgment). Nor did they specify how many of these eight specialists were interpreters and how many were cultural mediators. In any event, there were only eight such specialists, and the reference to any other specialist, like social operators, social workers and psychologists (see paragraph 246 of the judgment), was, with due respect, not only irrelevant, but also misleading, because the allegation of the Government as to who could have been present at the interview was confined only to an interpreter or a cultural mediator. Moreover, at the CSPA, at the relevant time, there were a considerable number of foreign nationals, as is indicated in the judgment (see paragraphs 180 and 182). It is thus possible that the number of interpreters or cultural mediators may not have been sufficient in order to attend to all the needs as required. In other words, the administrative infrastructure needed to properly process so many expulsions in a short period of time was not necessarily adequate. One does not know, after all, how many of these interpreters or cultural workers were working on the date when the personal interviews allegedly took place. Since the burden of proof that a personal interview was actually conducted is on the Government, and, since they could not name the person who conducted the alleged interview or offer the Court any evidence from him or her as to the content of the interview, any such allegation could only be speculative, without having any evidential weight, not even on the standard of the “balance of probabilities”. However, I believe that the standard of proof in such cases must be high and specifically “beyond reasonable doubt”, since the procedural right guaranteed under Article 4 of Protocol No. 4 is absolute, and the procedural obligation of the respondent State thereunder is mandatory. In other words, a State which expels aliens en masse is presumed to be in violation of Article 4 of Protocol No. 4 unless it can prove, beyond reasonable doubt, that it followed due process regarding every alien in the group, through a procedure involving personal interviews.

10. 36. The applicants argued that there were no records of their personal interviews, not because they were destroyed by fire, but because there was no personal interview to be recorded. Why should one accept the position of the Government, which despite it being their obligation to conduct a personal interview provided the Court with no evidence at all to that effect, and not accept the position of the three applicants that there were no such personal interviews and that the authorities signally failed to fulfil their procedural obligation under Article 4 of Protocol No. 4?

11. 37. Not only were there no records available to prove that a personal interview had been conducted, there were also no records available to prove that an opportunity had been given to the applicants to notify the authorities of any reasons why they should remain in Italy or why they should not be returned. As to the opportunity allegedly given to the applicants to raise any claim if they so wished, again, the Government's allegation was general in nature as can be seen from paragraph 225 of the judgment:

    “In the Government's view, the applicants, like all the other migrants, had definitely been informed of the possibility of lodging an asylum application, but they simply decided not to make use of that avenue.”

    Consequently, the majority's stance, accepting as persuasive such a general allegation of the Government, could not but amount to an assumption, as shown in paragraph 247 of the judgment:

    “Nevertheless, in an expulsion procedure the possibility of lodging an asylum application is a paramount safeguard, and there is no reason to assume that the Italian authorities which heeded the wishes of other migrants who sought to rely on the non-refoulement principle, would have remained passive in response to the submission of other legitimate and legally arguable impediments to their removal.”

12. 38. The majority, accepting the allegation of the Government, say that “the applicants had an opportunity to notify the authorities of any reasons why they should remain in Italy or why they should not be returned” (paragraph 247 of the judgment). First of all, there was no allegation by the Government that they had kept any record of having informed the applicants about their rights, or evidence that such a record ever existed. But how could the allegation of the Government about informing the applicants be persuasive or valid, when no documentary evidence was produced to prove this. Even assuming that there was no documentary evidence because it was destroyed in the fire, the authorities had a positive obligation to afford the applicants a fresh opportunity to raise any claims they may have had and to make a record accordingly. In the absence of records, one cannot know if the authorities informed the applicants about their rights, and if the applicants reported anything relevant to the authorities. Why should one accept the allegation of the Government that they informed the applicants of the possibility of lodging an asylum application, when the authorities were following the summary procedure provided for by the bilateral agreements to expel the applicants?

13. 39. In the judgment (paragraph 249) it is stated:

    “Even assuming that [the applicants] encountered objective difficulties in the CSPA or on the ships …, the Court is of the view that during that not insignificant period of time the applicants had the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Italy.”

    Since, according to the majority, the period during which the applicants stayed in Italy was not insignificant, thus allowing them the time to draw the attention of the national authorities to any claim they had, this period could equally, and even more importantly, have been used by the authorities in order to repeat the alleged personal interviews, if the Government's allegation that the records of the interview had been destroyed in the fire was true. In view of the facts of the case, and despite the vulnerable or difficult situation of the applicants, it is my opinion that the applicants were not afforded by the authorities an opportunity to have a personal interview or to raise any claim or to obtain legal assistance. It is true, moreover, that collective expulsions of aliens without procedural guarantees create among them feelings of uncertainty.

14. 40. The Court unanimously found that the respondent State had violated Article 5 § 2 of the Convention, 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”. This finding, I believe, is more consistent with my view, that the authorities showed a similar failure and lack of diligence and caution regarding the issue of personal interviews under Article 4 of Protocol No. 4, than with the stance of the Government, which argued that they had complied with the provisions of both Article 5 § 2 and Article 4 of Protocol No. 4. Why should one expect the authorities to inform the applicants about their rights, when they did not even inform them about the reasons for their arrest? After all, as has been said above, the simplified bilateral agreements between Italy and Tunisia were applied for the return of the applicants, in the absence of any representative of the Italian authorities in the readmission procedure.

15. 41. With due respect, an argument drawn by the majority from the alleged fact that seventy-two migrants held in the Lampedusa CSPA had expressed their wish to apply for asylum (paragraph 247 of the judgment) is not quite relevant, firstly, because there is no examination in this case of the circumstances of these other migrants, who may or may not have undergone a personal interview, in order to compare them with the circumstances of the applicants, and, secondly, because, as has been said above, there was no record to prove what actually happened or what was said or claimed, if anything. In any event, why should one take into account what happened to those seventy-two migrants, about whom the Court has no information, and not take into account the Chamber's findings that “a large number of individuals of the same origin around the time of the events in issue, had been subjected to the same outcome as the applicants”, that “the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned” (paragraph 213 of the judgment), and, ultimately, that “[t]hose elements sufficed for the Chamber to find that the applicants’ expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached …” (ibid.)?

16. 42. In conclusion, I believe that it is not proven that the applicants underwent personal interviews for the purposes of Article 4 of Protocol No. 4 and that the Italian authorities had signally failed to fulfil their procedural obligations.

D. Whether the Adjective “Collective” in Article 4 of Protocol No. 4 Refers to the “Measure” or the “Procedure” Leading to the Expulsion of Aliens, or Whether it is Quantitative in Nature

1. 43. The question arises as to what is the true meaning of the adjective “collective” in Article 4 of Protocol No. 4, which is of central importance for the determination of the notion of “collective expulsion”.

2. 44. In the judgment (paragraph 244), though the question is raised as to whether the expulsion was “collective” in nature, nothing is said, however, about any necessary quantitative requirement for the meaning of the phrase “collective expulsion” under Article 4 of Protocol No. 4. However, in the judgment, it is assumed, without being clearly stated, that the application, had it not been for the other reasons given in the judgment, would not have been dismissed under Article 4 of Protocol No. 4 on the basis that the applicants were only three in number, not meeting any greater numerical threshold under the said provision, as was the view of two of the judges in the Chamber, Judges Sajó and Vučinić, in their joint partly dissenting opinion. According to these two judges, who interpreted Article 4 of Protocol No. 4 in the light of its historical origins (see paragraphs 9 and 18 of their opinion), there had not been a “collective expulsion” in the present case, as the expulsion was not directed at an “entire group”, implying a large-scale deportation of aliens.

3. 45. The adjective “collective” in Article 4 of Protocol No. 4, referring to the phrase “expulsion of aliens”, could most logically be indicative of the measure or the procedure for handling the expulsion of aliens as a group, and not of the number of the aliens involved in a group expulsion. Otherwise, adjectives such as “massive” or “substantial” would have been used instead. The case-law of this Court (see references in the judgment, paragraph 237), when referring to the adjective “collective”, gives it the meaning of a group (“as a group”), without any distinction being made between groups according to the number of their members. Since Article 4 of Protocol No. 4 and the case-law of this Court do not distinguish on a numerical basis, neither should one introduce such a distinction, in accordance with the Latin maxim ubi lex non distinguit, nec nos distinguere debemus (7 Coke's Reports, 5).

4. 46. Support for the view that the adjective “collective” in Article 4 of Protocol No. 4 refers to a “measure” or “procedure”, rather than to a quantitative or numerical figure can be derived from the wording of the previous Article of the same Protocol, namely Article 3 § 1, which makes provision for the prohibition of expulsion of nationals. Article 3 § 1 reads as follows:

   “1. No one shall be expelled, by means of an individual or a collective measure, from the territory of the State of which he is a national.”

   The key words in Article 3 § 1 supporting the present argument are: the adjectives “individual” and “collective”, used disjunctively, and probably as antonyms; the phrase “by means of”; and the noun “measure”, to which the adjectives “individual” and “collective” refer.

5. 47. It is clear, therefore, from the above-mentioned analysis that the same adjective, namely “collective”, which is used in the two provisions, Article 3 and Article 4 of Protocol No. 4, has or should have the same meaning, thus referring to the “measure” or “procedure” for the handling of expulsions of people as a group. It is a sound rule of construction, which I believe applies also in regard to the Convention's provisions, to give the same meaning to the same words or phrases occurring in different parts of a legal instrument, unless it is otherwise made clear (see F.A.R. Bennion, Bennion on Statutory Interpretation: a Code, fifth edition, London, 2008, pp. 1160 and 1217 and the relevant common law case-law cited therein). In accordance with a systemic interpretation and the principle that the Convention should be interpreted as a whole and its different parts should be understood noscitur a sociis, Articles 3 and 4 of Protocol No. 4 should be read in conjunction and the phrase “collective expulsion” should be interpreted in association with the other terms of Article 3 § 1 in their context and reading Protocol No. 4 as a whole. Such an interpretation is in line with Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT) of 1969, which provides that: “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”. This provision reflects the rule that the same words should have the same meaning, if the ordinary meaning is to be given to the same terms in a treaty. The Court in Hirsi Jamaa and Others (cited above, §§ 170-71), dealing with a different issue under Article 4 of Protocol No. 4 clearly referred to the above-mentioned principles of interpretation under the VCLT:

   “170. In interpreting the provisions of the Convention, the Court draws on Articles 31 to 33 of the Vienna Convention on the Law of Treaties (see, for example, Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Demir and Baykara v. Turkey [GC], no. 34503/97, § 65, ECHR 2008; and Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008).

   171. Pursuant to the Vienna Convention on the Law of Treaties, the Court must establish the ordinary meaning to be given to the terms in their context and in the light of the object and purpose of the provision from which they are taken. It must take account of the fact that the provision in issue forms part of a treaty for the effective protection of human rights and that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). The Court must also take account of any relevant rules and principles of international law applicable in the relations between the Contracting Parties (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005-VI; see also Article 31 § 3 (c) of the Vienna Convention). The Court may also have recourse to supplementary means of interpretation, notably the travaux préparatoires of the Convention, either to confirm the meaning determined in accordance with the methods referred to above or to clarify the meaning when it would otherwise be ambiguous, obscure or manifestly absurd and unreasonable (see Article 32 of the Vienna Convention).”

6. 48. It is also apparent from the travaux préparatoires in respect of Protocol No. 4, as a supplementary means of interpretation under Article 32 VCLT, that the phrase “collective expulsion” is used as having the same meaning in regard to both nationals and aliens. In paragraph 32 of its report, the Committee of Experts on Human Rights to the Committee of Ministers (see Collected Edition of the “Travaux Préparatoires” of Protocol No. 4, Strasbourg, 1976, p. 669), states the following:

   “This provision [Article 4 of Protocol No. 4] refers to collective expulsion of aliens, including stateless persons. The collective expulsion of nationals is prohibited under Article 3, paragraph 1.”

7. 49. Also, in paragraph 33 of the same report, the Committee of Experts states:

   “It was agreed that the adoption of this Article [Article 4 of Protocol No. 4] and paragraph 1 of Article 3 could in no way be interpreted as in any way justifying measures of collective expulsion which may have been taken in the past.”

8. 50. In addition, the Court in Hirsi Jamaa and Others, cited above, § 174, read Articles 3 and 4 of Protocol No. 4 in conjunction, regarding the meaning of “expulsion” in the two Articles, thus further supporting the proposed common meaning of the adjective “collective”:

   “… Lastly, according to the drafters of Protocol No. 4, the word ‘expulsion’ should be interpreted ‘in the generic meaning, in current use (to drive away from a place)’. While that last definition is contained in the section relating to Article 3 of the Protocol, the Court considers that it can also be applied to Article 4 of the same Protocol.”

9. 51. In Theory and Practice of the European Convention on Human Rights (P. Van Dijk, F. Van Hoof, A. Van Rijn and L. Zwaak (eds), fourth edition, Antwerp-Oxford, 2006), Chapter 23 on “Prohibition of Collective Expulsion of Aliens (Article 4 of Protocol No. 4)” (revised by J. Schokkenbroek, p. 955), it is elegantly explained that the decisive criterion for the application of Article 4 of Protocol No. 4 is the procedure leading to the expulsion and neither the number of which the group consists nor the link knitting together its members:

   “Even then, however, the question of what exactly distinguishes the expulsion of a group of aliens from the expulsion of a numbers of individual aliens has not yet been answered. How large must such a group be? Is the expulsion of an entire family to be considered a collective expulsion? And is this the case, for instance, for the expulsion of an orchestra or sport team consisting of foreigners? If so, why then do such ‘groups’ deserve more protection than a foreigner who lives on his own or an individual foreign musician or sportsman? This problem can be solved only if one uses neither the number of which the group consists nor the link knitting together the members of that group as the decisive criterion of the application of Article 4, but the procedure leading to the expulsion. If a person is expelled along with others without his case having received individual treatment, his expulsion is a case of collective expulsion.”

10. 52. Article 4 of Protocol No. 4 contains a procedural guarantee of human dignity which is inherent in the Convention. What the Court profoundly said in Bouyid (cited above, § 81) regarding the prohibition of inhuman or degrading treatment or punishment, that it is “[i]ndeed … a value of civilisation closely bound up with respect for human dignity”, applies also, in my view, regarding the prohibition of collective expulsion, in the sense that the lack of the procedural guarantee of a personal interview is inconsistent with the Convention's fundamental values of a democratic society. It must be emphasised that the rights under Articles 3 and 4 of Protocol No. 4 are both absolute rights, which apply without exception. As rightly put by Professor Feldman, human dignity “may need to be taken into account … when interpreting the Convention rights themselves …” (David Feldman, “Human Dignity as a Legal Value” – part II, Public Law, Spring 2000, p. 75). Therefore it would not have been the intention of the drafters of the Convention to limit the procedural guarantee of Article 4 of Protocol No. 4, underpinned as it is by human dignity, only to cases where the expulsion of people is numerically massive, and not also in the event of an arbitrary expulsion of smaller groups of aliens, not treating such people as a group under Article 4 of Protocol No. 4 and without requiring any reasonable and objective examination of the particular case of each alien in a group on a case-by-case basis involving a personal interview. The procedural guarantee of Article 4 of Protocol No. 4 is based on the idea that human herding and collective and indiscriminate removal diminish individuality and offend against personality, autonomy and human dignity. Thus, ultimately, it is human dignity that Article 4 of Protocol No. 4 seeks to protect. Again, it would be contrary to the idea of human nature and the purpose of the Convention for the Court to decide the issue in question on the basis of arithmetical considerations.

11. 53. Even if, for the sake of argument, one were to be faced with two equally valid or arguable interpretations of Article 4 of Protocol No. 4, one would prefer that which favours the essence of the right (in dubio in favorem pro libertate) and, at the same time, does not limit the ambit of the said provision ratione personae, instead of the other, which would exclude from the protection of Article 4 small groups of aliens, like the group of applicants in the present case.

12. 54. In conclusion, it is immaterial for the purposes of Article 4 of Protocol No. 4 that the applicants were only three in number. Besides, they were expelled back to their country as a group, merely on the basis of their nationality, something which the said provision prohibits.

E. Whether Lawfulness of Residence or Stay and the Purpose of Entry into the Territory of a State are Criteria for the Application of Article 4 of Protocol No. 4

1. 55. Article 4 of Protocol No. 4 does not distinguish between groups of aliens according to whether they lawfully or unlawfully entered the territory of a State. Neither does it distinguish between different kinds of groups who unlawfully entered the territory of a State. So one ought not to make any such distinction, observing the above-mentioned principle ubi lex non distinguit, nec nos distinguere debemus. Otherwise the interpretation would be restrictive and contrary to the object of the provision.

2. 56. The Committee of Experts, which finalised the draft of Article 4 of Protocol No. 4, made it absolutely clear (see “Travaux Préparatoires” of Protocol No. 4, cited above, p. 505, § 34), that the prohibition contained in this Article applies to aliens irrespective of whether or not they reside or are domiciled in the territory of the State they have entered:

   “34. This provision refers to collective expulsion of aliens. The term ‘aliens’ shall here be taken to mean all those who have no actual right to nationality in a State, whether they are merely 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. The collective expulsion of nationals is prohibited under Article 3.”

   Apart from this clear explanation by the Committee of Experts, the evolution of the draft of Article 4 of Protocol No. 4 is interesting and supports the point at issue, namely that this Article was not confined only to aliens lawfully resident in the territory of a State. The original draft of the Article had actually, in its first two paragraphs, contained wording similar to that now to be found in Article 1 §§ 1 and 2 of Protocol No. 7, which deals expressly with individual expulsion of aliens lawfully resident in the territory of a State. But draft Article 4 of Protocol No. 4, in its third and last paragraph provided that: “Collective expulsion is prohibited” (ibid., pp. 447 and 454). This last paragraph, unlike the first two, was intended to apply irrespective of the nationality or residence of the persons expelled (ibid., pp. 481 and 505). The Committee of Experts ultimately decided not to include in Article 4 of Protocol No. 4 any provision concerning the individual expulsion of aliens lawfully residing in the territory of the State and it thus deleted the first two paragraphs, leaving only the expulsion of a group, but limiting it to aliens only, irrespective, of course, of the lawfulness of their residence (ibid., pp. 490, 505 and 507). The Committee excluded the collective expulsion of nationals from this provision, as they were to be covered by Article 3 of Protocol No. 4. It was not until Protocol No. 7 came into force, about twenty-one years after the entry into force of Protocol No. 4, that the individual expulsion of aliens lawfully resident in the territory of a State was finally regulated. However, as regards individual expulsions of aliens who are unlawfully within the territory of a State, there is no provision in the Convention or its Protocols specifically regulating such matters, and this omission may or may not have been intentional.

3. 57. It is true that where the drafters of the Convention intended to deal with the expulsion of an alien “lawfully resident in the territory of a State”, or, with restrictions on the freedom of movement of “everyone lawfully within the territory of a State”, they used the adverb “lawfully”, as they did in Article 1 of Protocol No. 7 and Article 2 § 1 of Protocol No. 4, respectively. It follows that in Article 4 of Protocol No. 4, where the drafters did not use the adverb “lawfully” or another similar term, the meaning is intentionally not limited to lawful residents.

4. 58. Thus, the procedural guarantee of Article 4 of Protocol No. 4 applies to all aliens, including stateless persons, no matter whether or not they have entered the territory of a State lawfully or have remained lawful entrants, although entry into the physical territory of the State, or residence in that territory, may not be required (see Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, third edition, Oxford, 2014, at p. 961 and note 88).

5. 59. The said provision, however, applies mainly to the case of expulsion of persons who are not lawfully resident in the territory of a State, for example, groups of would-be or failed asylum seekers, of Roma or gypsies seeking a camp, of migrant workers seeking employment, of economic migrants, etc. This can be understood in the light of another protocol to the Convention, namely Protocol No. 7, which, although it does not concern collective expulsion, deals specifically and in detail (Article 1 thereof) with procedural safeguards relating to the individual expulsion of aliens lawfully resident in the territory of a State. Unlike, Article 4 of Protocol No. 4, which applies irrespective of the lawfulness of the residence of the applicants, Article 1 of Protocol No. 7 applies only to lawful residents in a State. Accordingly, in Sulejmanovic and Sultanovic v. Italy, no. 57574/00, 14 March 2002, the complaint under Article 1 of Protocol No. 7 was rejected on the ground that the applicants were not considered lawfully resident in Italy, but the complaint under Article 4 of Protocol No. 4 was declared admissible.

6. 60. The Convention is a living instrument and its purpose is to provide its guarantees in response to the changing needs of modern society, considering also that the movement of people from one country to another is easier nowadays than in the past, and the causes and reasons for such movements may differ in kind and in time. It is therefore immaterial if the applicants in the present case were economic migrants (if that is true, since no personal interview was conducted at the material time to ascertain the applicants’ true motives).

F. Whether the Circumstances Surrounding the Implementation of an Expulsion Decision, and the Decision of Implementation Itself, Play a Role in the Application of Article 4 of Protocol No. 4

1. 61. The question arises, whether, apart from the conduct of a personal interview which, in my view, is mandatory in all cases, the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in determining whether Article 4 of Protocol No. 4 has been complied with.

2. 62. The answer should, in my view, be in the affirmative. The failure to conduct a personal interview, which should be mandatory, leads to a violation of the above provision per se. But, the conduct of a personal interview is the minimum procedural guarantee required by Article 4 of Protocol No. 4. This guarantee is to be secured by all High Contracting Parties to everyone within their jurisdiction, as provided by Article 1 of the Convention. If a State, despite the conduct of personal interviews, nevertheless ignores the personal circumstances of each alien forming a group and proceeds with the simultaneous expulsions of all members of the same group merely on the basis of their nationality, religion or membership of a group, without considering the individual circumstances of each alien, it still violates Article 4 of Protocol No. 4, because it goes against the aim of the said provision. One should not confuse the prohibition of collective expulsion in Article 4 of Protocol No. 4 on a basis other than the personal circumstances of each of the aliens involved, which is a procedural guarantee and at the same the aim of the provision, with any arguable substantive right an alien may have to remain in a territory. Thus the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in the application of Article 4 of Protocol No. 4 and must be considered as an additional requirement of its application.

3. 63. This additional requirement, based on the very aim of Article 4 of Protocol No. 4, was enunciated in Čonka v. Belgium (no. 51564/99, § 63, ECHR 2002-I), the facts of which, together with this requirement, are appropriately discussed in the following passage from Theory and Practice of the European Convention on Human Rights (cited above, p. 956):

   “In the Čonka Case the Court formulated an important additional requirement. The case concerned a group of Slovak gypsies who, pending their appeals against the refusals to grant asylum, were asked to report to the police station in order to ‘complete asylum request files’. However, upon their arrival at the police station removal orders were served upon them and a few hours later they were detained in a holding centre and subsequently removed to Slovakia. The Court held that the fact that a ‘reasonable and objective examination of the particular case of each individual alien of the group’ has taken place (as was the case here) does not mean that the circumstances surrounding the implementation of the expulsion decisions play no role in the determination of whether Article 4 has been respected. In this particular case the Court express doubts as to the legal basis for the manner in which the Belgian authorities had proceeded, also in view of the large numbers of individuals of the same origin that were concerned. These doubts were reinforced by a set of circumstances: the fact that the political authorities had announced beforehand that operations of this type would be held and had given instructions for them; the simultaneous convocation to report to the police station; the identical wording of the arrest and expulsion orders; the great difficulty for the persons concerned to contact a lawyer; and the fact that the asylum procedure had not been completed. The Court concluded [§ 63] that ‘at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account’.”

4. 64. The interpretation of a legal provision according to its aim is particularly important in a convention such as the European Convention on Human Rights and the Protocols thereto, which are aimed at protecting human rights in a practical and effective manner. Because of this, such interpretation, like that of Article 4 of Protocol No. 4, should go to the core or the heart of the right requiring protection, and it must therefore be broad and effective in terms of its above-mentioned object and purpose.

5. 65. Collective expulsion of aliens merely on the basis of their nationality, as was the case in the present application, also offends against the principle of democracy, which is one of the fundamental principles of the Convention, specifically emphasised in its preamble. This principle does not allow or tolerate discrimination against aliens on the basis of their nationality. As has been said above, the prohibition of Article 4 of Protocol No. 4 is not only a prohibition of arbitrariness but also a prohibition of discrimination, in other words a prohibition of expulsion of aliens merely because they belong to a certain group. Collective expulsion can also be discriminatory because of its disproportionate character.

6. 66. In conclusion, the guarantees of Article 4 of Protocol No. 4 are, firstly, the conduct of a personal interview, and secondly, protection from an expulsion decision, and its implementation, based merely on the ground of membership of aliens in a group, disregarding their personal circumstances; a two-fold test should therefore be applied.

7. 67. In my view, neither of these guarantees was satisfied in the present case, since no interview was conducted and the expulsion of the applicants was carried out merely on the basis of their nationality, pursuant to the bilateral agreements between Italy and Tunisia.

8. 68. Accordingly, there has, in my view, been a violation of Article 4 of Protocol No. 4.

G. Whether There has been a Violation of Article 13 of the Convention Taken Together with Article 4 of Protocol No. 4

1. 69. I agree with the Chamber judgment (§ 172) that there has also been a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4.

2. 70. It is clearly stated in the refusal-of-entry orders that: “The lodging of an appeal does not suspend the enforcement (efficacia) of the present order” (see paragraph 19 of the judgment). Consequently, the lodging of an appeal could not meet the requirement of Article 13 of the Convention for suspensive effect, as established by the case-law cited in the Chamber judgment (Chamber judgment, § 172).

3. 71. In addition, according to the case-law, “the requirement under Article 13 that execution of the impugned measure be stayed cannot be regarded as a subsidiary aspect” (ibid.).

4. 72. With all due respect to the majority, I disagree that the lack of suspensive effect of a removal decision, pending an appeal, in a collective expulsion case, does not, in itself, constitute a violation of Article 13, and that the criterion of suspensive effect of a removal order may depend on whether the applicants allege that there is a real risk of a violation of their rights guaranteed by Articles 2 and 3 in the destination country (see paragraphs 277 and 281 of the judgment). This, ultimately, would mean that the suspensive effect of a removal order will be dependent on the discretion of the immigration authorities, to assess, in advance and before an appeal decision is taken, whether an alien has an “arguable” complaint that he or she faces a violation of Articles 2 or 3 of the Convention. However, even assuming that the above approach was correct, and the immigration authorities were convinced that there was a real risk of violations of rights guaranteed by Articles 2 and 3, the refusal-of-entry orders, based on the bilateral agreements between Italy and Tunisia, would probably remain unaffected, still prohibiting suspension of enforcement in the case of the lodging of an appeal.

5. 73. The approach I would follow, which I believe is the correct one, is reinforced by the following obiter dictum of the Court in De Souza Ribeiro v. France ([GC], no. 22689/07, § 82, ECHR 2012):

   “Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (see Čonka, cited above §§ 81-83, and Hirsi Jamaa and Others, cited above, § 206).”

   The above passage was an obiter dictum and not the ratio decidendi of the case, because the issue in relation to which it was stated was an issue of compliance with Article 13 of the Convention taken in conjunction with Article 8 of the Convention and not an issue of compliance of Article 13 taken in conjunction with Article 4 of Protocol No. 4. Still, like any other obiter dictum of the Grand Chamber, this one is of highly persuasive authority. The majority decided that this dictum “cannot be read in isolation”, but that “it must be understood in the light of the paragraph as a whole”, which deals with obligations arising from Articles 2 and 3 of the Convention. They also emphasised that the two cases referred to in the above dictum concerned Article 3 issues and not situations where there was any allegation by the applicants that their expulsion was collective in nature.

6. 74. With due respect, I do not agree with the above reasoning. Though it is correct that the said dictum should not be read in isolation, it cannot, however, be understood only in the light of the paragraph (De Souza Ribeiro, § 82) where it is to be found, as a whole, but also in the light of the section where the paragraph is to be found, as a whole. This section is entitled: “Compliance with Article 13 of the Convention taken in conjunction with Article 8”. Accordingly, what is said in paragraph 82 in relation to compliance with Article 13 taken in conjunction with Articles 2 and 3 of the Convention and Article 4 of Protocol No. 4 is said obiter, because the relevant issue there was compliance with Article 13 taken together with Article 8. The meaning of paragraph 82, as I understand it, is that Article 13 of the Convention can apply in conjunction with (i) Article 2 of the Convention, (ii) Article 3 of the Convention, or (iii) Article 4 of Protocol No. 4, independently and separately, without the latter depending on whether there is also an issue concerning Article 2 or Article 3. This is exactly the meaning of the word “Lastly” in the said passage which leaves no doubt on the matter. In Hirsi Jamaa and Others (cited above, § 207) it is clear that, regarding compliance with Article 13 taken in conjunction with Article 3 and Article 4 of Protocol No. 4, the Court does not subject an issue of Article 4 of Protocol No. 4 to an obligation under Article 3, but deals with them separately:

   “The Court concludes that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4 to the Convention.”

   Moreover, the other case to which the dictum in question refers, namely Čonka (cited above), does not seem to support the view of the majority, in the light, inter alia, of the wording of paragraph 82 thereof (emphasis added):

   “82. Firstly, it is not possible to exclude the risk that in a system where stays of execution must be applied for and are discretionary they may be refused wrongly, in particular if it was subsequently to transpire that the court ruling on the merits has nonetheless to quash a deportation order for failure to comply with the Convention, for instance, if the applicant would be subjected to ill-treatment in the country of destination or be part of a collective expulsion. In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13.”

7. 75. I believe that, again, like the procedural obligation under Article 4 of Protocol No. 4, the said obligation under Article 13, when it applies in relation to Article 4 of Protocol No. 4, is mandatory and not qualified by any exception, this being the only safeguard against arbitrariness. Otherwise, it would not serve to ensure the mandatory nature of the procedural obligation of Article 4 of Protocol No. 4, as I believe it should do, or the principle of effectiveness of the Convention provisions, if Article 13 were not to have an automatic suspensive effect in respect of the enforcement of a removal order, taken under Article 4 of Protocol No. 4.

8. 76. Finally, the procedural right guaranteed in Article 4 of Protocol No. 4 would lose its requisite protection, if under Article 13 a removal order did not have an automatic suspensive effect where an appeal is lodged.

H. Award in Respect of Non-Pecuniary Damage for the Violations of Article 4 of Protocol No. 4 and of Article 13 of the Convention Taken Together with the Former Article

1. 77. My findings set out above, that there have been violations of Article 4 of Protocol No. 4 and of Article 13 of the Convention taken together with the former Article, would have led to an increase in the amount of the award in respect of non-pecuniary damage, the determination of which, however, could only be theoretical, since I am in the minority.