The European Court of Human Rights (ECtHR) has unanimously found Italy to be in violation of the prohibition of collective expulsions of aliens (Article 4 of Protocol 4 European Convention of Human Rights) as well as the prohibition of inhumane and degrading treatment (Article 3) and the right to and effective remedy (Article 13) by returning a group of Afghan asylum applicants to Greece. In turn, the Court has ruled that Greece had also breached the prohibition of inhumane treatment and the right to an effective remedy given the lack of access to the asylum procedure in Greece and the risk of deportation to Afghanistan.
According to the Court by expelling the applicants to Greece, Italy ran the risk of indirectly refouling the applicants to Afghanistan where they would face inhumane or degrading treatment. The Court highlighted that interception at Adriatic ports by Italian authorities had taken place in the past and in the present case the applicants upon arrival to Italy were immediately sent back to Greece, denying them the possibility of applying for asylum and their procedural and material rights, notably legal information on the asylum procedure in a language which the applicant is reasonably supposed to understand, contact with a translator, legal representation, housing and medical care.
Furthermore, the Court did not accept Italy’s submission that the expulsion took place under the Dublin Regulation. The Court noted that in order for a return under the Dublin system, Italy is required to take an individual analysis of each asylum application rather than proceed with a mass expulsion, which had in fact taken place. In this regard, the Court also noted that difficulties with the management of migration fluxes could never justify recourse to practices which were incompatible with the European Convention on Human Rights as noted in Hirsi Jamaa v Italy.
Lastly, relying on jurisprudence from both M.S.S and Hirsi the Court found that it is for the refouling State to assure that the receiving State offers sufficient guarantees that the individual will not be repatriated to their country of origin without an investigation as to the risks the applicant may face upon return.
This article originally appeared in the ECRE Weekly Bulletin of 24 October 2014. You can subscribe to the Weekly Bulletin here.