CEDH · CASELAW;CLIN;ENG — 29 avril 2025

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Italy (dec.) [GC] - 63386/16 Decision 29.4.2025 [GC] Article 1 Jurisdiction of States Responsibility of States Confinement of Tunisian national on board Italian cruise ship responsible for returning him to Tunis following refusal-of-entry order issued by Italian authorities: jurisdiction and responsibility of respondent State Article 3 Degrading treatment Inhuman treatment Conditions of Tunisian national’s seven-day return voyage to Tunis on board Italian cruise ship following refusal-of-entry order issued by Italian border police: inadmissible Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Remedies available under Italian law for Tunisian national refused entry at maritime border who complained of unlawful deprivation of liberty on board Italian ship that returned him to Tunis: inadmissible Facts – The applicant, a Tunisian national who was born in 1976, lawfully resided in Italy from 2014 to 3   April 2016 on the basis of a temporary residence permit. On 1   May 2016, upon his return from a stay in Tunisia, he was subjected to an identity check at the Palermo maritime border while on board an Italian cruise ship arriving from Tunis. He was in possession of his passport, his expired residence permit and a copy of an application for a long-term residence permit dated 16 October 2015. The Italian border police informed him that this application had been rejected on 24   March 2016 and noted that he did not have an entry visa. They issued him with a refusal-of-entry order. The applicant was not allowed to leave the ship and the captain was required to return him to Tunis in accordance with a “request to immediately take charge of a foreign national refused entry to Italy and to convey him or her to another State”. The voyage lasted seven days. On 3   May 2016 the applicant’s lawyer sought, unsuccessfully, to have the Italian police revoke the refusal-of-entry order and explained that the applicant was confined on board the ship in a cabin that was locked from the outside. On 18   May 2016 he wrote to the Minister of the Interior, arguing that his client alleged that he had been confined to a cabin that was locked from the outside throughout the entire voyage, without being allowed to leave. In reply, the Minister referred to the provisions of European Union (EU) law and national law which placed carriers under the obligation to transport any foreign national present on board the ship and refused entry back to his or her place of departure. He pointed out, in particular, that the applicant had been accommodated in a private cabin that was equipped with a bathroom and was suitably furnished, his supervision having been ensured by specialised security staff. Before the Court, the applicant alleged that he had been unlawfully deprived of his liberty on board the ship and complained of violations of paragraphs   1, 2, 4 and 5 of Article   5 of the Convention. Relying on Articles   3 and 13 of the Convention, he complained of the material conditions of his stay on board the ship, which he described as inhuman and degrading, and alleged that no effective domestic remedies had been available to him in respect of his complaints. On 20   February 2024 a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber. Law – (1) Preliminary issues – (a) Jurisdiction – The present case constituted an instance of the exercise of Italy’s jurisdiction such that the responsibility of that State was engaged for the purposes of the Convention: (i) the impugned events had begun in Italian national waters, had continued on the high seas and had ceased once the ship – a vessel owned by an Italian shipping company, flying the Italian flag and under the control of a captain whose powers were governed by Italian law – had arrived in Tunisia; (ii) the Court had previously found that activities on board ships flying the flag of a State fell within that State’s jurisdiction and that, by virtue of the relevant provisions of the international law of the sea, a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying, a principle, furthermore, that had been incorporated into Italian law; (iii) the Government had submitted that the events in question did not fall within Italy’s jurisdiction since they had come to an end in the territory of another State, but that argument was irrelevant in the light of the Court’s case-law and Article   27   §   1 of the United Nations Convention on the Law of the Sea, which they had cited, did not permit any other conclusion. Conclusion : jurisdiction established. (b) Compatibility ratione personae – The Court was not persuaded by the Government’s argument that, in transporting the applicant, the ship’s captain had been performing inherently private duties: (i)   the captain of a ship had a dual status under Italian law: he or she performed tasks of an exclusively private nature as a representative of the shipowner but could also be vested with public authority when accomplishing certain tasks, in particular when carrying out the public-service assignments entrusted to him or her by law; (ii)   the captain of the ship had been required to enforce the refusal-of-entry order issued in respect of the applicant pursuant to an Italian Legislative Decree and the carrier’s role, duties and obligations in matters of immigration control were also recognised and regulated by EU law and by other provisions of international law; (iii)   the Government had submitted that the duties of the ship’s captain during such transportation fell within the scope of the power vested in him or her to maintain order and discipline on board the ship – citing, in particular, Article   1249 of the Navigation Code – but according to the case-law of the Court of Cassation the captain’s disciplinary duties, in particular, fell within his or her public-authority powers and, under Article 186 of the Navigation Code, the captain had authority over everyone on board his or her ship. In sum, public-authority powers had been vested in the captain of the ship when he had been entrusted with the task of returning the applicant and had remained so throughout the latter’s entire stay on board, including when the ship had been in Tunisian territorial waters. The events which had given rise to the applicant’s complaint were therefore attributable to the respondent State and were such as to engage its responsibility under the Convention. Conclusion :   preliminary objection dismissed   (incompatibility ratione personae ). (2) Articles   5 §§   1 and 2: The remedies proposed by the Government (Article   35 §   1) – (a) Compensatory remedy to complain of unlawful deprivation of liberty and seek damages (Article   2043 of the Civil Code) – the Government had not provided the Court with any examples from domestic case-law, referring instead to Resolution CM/ResDH(2021)424 of 2   December 2021 in which, they had submitted, the Committee of Ministers, in closing the execution procedure pertaining to the Khlaifia and Others v.   Italy [GC] case, had acknowledged the effectiveness of the compensatory remedy in question – combined with the preventive remedy provided for in Article   700 of the Code of Civil Procedure – in cases involving the detention of aliens. The Court examined the examples from the case-law that the Government had submitted to the Committee of Ministers as part of the aforementioned execution procedure, namely three judgments of the Rome Court of Appeal hearing cases under Article   2043. In the Court’s view, even though these decisions had been delivered after the events in the present case, they demonstrated with a sufficient degree of certainty that the civil courts ruling on the basis of Article   2043 of the Civil Code were capable of holding the State authorities to account for deprivations of liberty found to have been unlawful in various regards and, where appropriate, could award compensation to make good the damage thereby sustained. In the applicant’s particular case, there was nothing to suggest that a compensatory remedy would have offered him no prospect of success if he had complained of a deprivation of liberty resulting from a refusal-of-entry order which had itself been lawful. Moreover, the applicant could have pursued a compensatory remedy against the shipowner or the captain, as Article   2043 of the Civil Code could be relied on both in claims against State authorities and in those against individuals or private companies. It could not be inferred from the lack of authorities in the specific area of immediate removals of aliens at the border that the domestic remedy in question – which was neither new nor special – was not effective, since such a lack of case-law could be explained by the fact that the remedy had never been used in this particular context. The Court found that it had been shown to a sufficient extent that the compensatory remedy which the Government had accused the applicant of failing to use could not be disregarded on the grounds that it was unavailable or ineffective. Had it been used by the applicant, that remedy would have made it possible for the domestic courts not only to clarify whether the circumstances of the case had amounted to a “deprivation of liberty” but also to scrutinise the lawfulness of the alleged deprivation of liberty and, if appropriate, compensate him in the event of their finding a violation of Article   5 of the Convention. Given that the deprivation of liberty alleged by the applicant had already come to an end when he had lodged his application, the characteristics of the compensatory remedy were sufficient to meet the requirements of the Court’s case-law for the purposes of Article   35 §   1 of the Convention. That being said, since the Government had submitted that the remedies to which they had referred had also been capable of securing a decision ordering the applicant’s release, the Court considered it appropriate to examine their effectiveness from that perspective as well. (b) Application to the ordinary courts for interim relief under Article   700 of the Code of Civil Procedure – This remedy empowered the courts to order urgent provisional measures for the preservation of a right that was liable to be impaired or to prevent imminent and irreparable damage. According to the Government, an application lodged on that basis, combined, in particular, with a compensation claim under Article   2043 of the Civil Code, could have secured interim relief entailing the applicant’s release. They produced three court decisions that had granted urgent applications lodged under Article   700 of the Code of Civil Procedure by persons applying for international protection, but acknowledged that there was no example to date of a case where a court hearing a case under Article   700 of the Code of Civil Procedure had ordered the claimant’s release.   As to the lack of domestic authorities, the Court referred back to the considerations set out above concerning the use of the compensatory remedy. If the applicant had had any doubts as to the possibility of obtaining interim relief entailing his release, it had been for him to dispel those doubts by applying to the domestic courts. Furthermore, the Court discerned no impediments to the accessibility of the remedies in question. In sum, the applicant had failed to exhaust available and effective remedies. The Court considered that where the entry, residence and removal of aliens was concerned, it was especially important to give the national courts an opportunity to interpret domestic law and prevent or put right Convention violations through their own legal system. Lastly, the Court noted that the present case was closely connected to issues that fell within the ambit of EU law and that the circumstances alleged by the applicant had formed part of the process of refusing admission to national territory, which was governed by the provisions of the Schengen Borders Code and Annex   V thereto. In the light of the functioning of the system for policing the external borders of the Schengen Area, the return by the carrier – which was required to take the necessary measures for such return on pain of sanctions – of a third-country national who did not fulfil all the entry conditions formed an integral part of the process of refusing admission to national territory and originated in the refusal-of-entry order. This being so, the question arose, in particular, whether the refusal-of-entry order had constituted the legal basis for the restrictions to which the applicant claimed to have been subjected while being returned, even assuming that these restrictions had amounted in substance to a “deprivation of liberty”. However, in the absence of proceedings before them, the Italian courts had not had the opportunity to examine, whether on the basis of arguments put forward by the parties or of the courts’ own motion, any issue as to the interpretation of the provisions of the Schengen Borders Code and Annex   V thereto or its compatibility with fundamental rights, while seeking, if appropriate, a preliminary ruling from the CJEU. Conclusion : preliminary objection upheld; inadmissible (failure to exhaust domestic remedies, even assuming that Article   5 was applicable in the present case). The complaint under Article   5 §   4, which was based on the same facts as, and did not raise any separate issue from, those examined under Article   5 §   1 above, was inadmissible on the same grounds. Having regard to the inadmissibility of those complaints, the complaint under Article   5 §   5 was incompatible ratione   materiae with the provisions of the Convention. (3) Article   3: The applicant had not been particularly vulnerable, whether by reason of anything he might have been through during his journey, or by reason of his age or state of health. His cabin, which measured eleven square metres, had been of acceptable size and cleanliness and had moreover been equipped with a porthole allowing it to be aired out and affording access to natural light. There was nothing to suggest that the applicant had suffered from a lack of food or drinking water, or that they had been deficient as to their quality. He had not been deprived of his personal belongings or his mobile phone, with which he had been able to communicate with the outside world and discuss his situation with his lawyer and family without restriction. As to outdoor access, it had not been proved beyond reasonable doubt that the applicant had been refused any opportunity to leave the cabin, as he had alleged. There were no grounds to conclude decisively that access to the outdoors and natural light had been so restricted as to render the applicant’s confinement incompatible with Article   3. In sum, the general accommodation conditions on board the ship had not attained the minimum level of severity required for the applicant’s seven-day confinement to engage Article   3 of the Convention. The complaint was therefore manifestly ill-founded, as was the related complaint under Article   13 of the Convention. Conclusion : inadmissible   (manifestly ill-founded). (See Hirsi Jamaa and Others v.   Italy [GC], 27765/09, 23   February 2012, Legal Summary ; Vučković and Others v.   Serbia (preliminary objections) [GC], 17153/11 et al., 25   March 2014, Legal Summary ; Khlaifia and Others v.   Italy [GC], 16483/12, 15   December 2016, Legal Summary ; M.N. and Others v.   Belgium (dec.) [GC], 3599/18, 5   May 2020, Legal Summary ; Duarte Agostinho and Others v.   Portugal and 32   Others (dec.) [GC], 39371/20, 9   April 2024, Legal Summary ; United Nations Convention on the Law of the Sea, signed at Montego Bay on 10   December 1982 and entered into force on 16   November 1994 (Convention of Montego Bay); Resolution CM/ResDH(2021)424 of the Committee of Ministers of the Council of Europe, Execution of the judgment of the European Court of Human Rights Khlaifia and Others against Italy, adopted on 2   December 2021)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .