By Linawati Sidarto
“It’s the first time that the procedure which countries like Italy and Spain, and sometimes Greece, apply comes before the ECHR,” said Thomas Spijkerboer, migration law professor at Amsterdam’s Vrije Universiteit. “The stakes are high. This is an incredibly important case.”
Since May 2009, Italy has made it a procedure to intercept in international waters boats filled with migrants, coming mostly from African countries, who aim to reach Italian shores. These migrants are then brought to Libya.
The United Nations Refugee Agency UNHCR said that in two months since Italy introduced its “new push-back policy,” at least 900 people trying to reach Italy by sea have been sent to other countries, mainly to Libya.
A law suit was filed in July last year by 24 asylum seekers originating from Somalia and Eritrea, who were among those intercepted and shipped to Libya. Rome-based lawyer Anton Giulio Lana, who represents the plaintiffs, said Italy is violating three articles in the European Convention of Human Rights: article 3 on the prohibition of torture and inhuman or degrading treatment, article 4 of protocol 4 prohibiting collective expulsions, and article 13 on the right to proper legal remedy.
One of the 24 plaintiffs has since passed away. “One of them died in his last attempt to reach the Italian coasts in November 2009,” Lana said.
The lawyer keeps in contact with his clients by phone or email, which is no easy feat given their uncertain living conditions. “Some of them are in temporary detention centres, and others are in prison in Tripoli.”
Italy’s policy has sparked sharp criticism from organisations such as UNHCR, Amnesty International and Human Rights Watch, all of which have expressed their support for the plaintiffs to the Strasbourg Court.
Lana stressed that the condition in Libyan detention centres is a grave concern. “Camps are often overcrowded, have sanitary problems, acts of violence or sexual abuses against women are regularly carried out, as well as acts of torture or ill-treatment.”
The UNHCR stated that based on its “assessment of the situation in Eritrea and our interviews with the (expelled) people themselves, it is clear that a significant number from this group are in need of international protection.”
Spijkerboer said that during the time Italy allowed migrants to land on its soil, about half of them applied for asylum, and from that group roughly half of the people are granted asylum. “A good working presumption is that a quarter of the people who are (now) returned are refugees.”
“European countries often claim that of all these migrants, a few out of every hundred might be refugees. But according to their own decision making behaviour, that’s a serious underestimation of the scope of the problem,” he said.
The ECHR has given Italy a deadline of April 12th to give its statement to the Court, and the plaintiffs in turn will have a month to reply to the statement. After that, Lana said, the Court will make its decision. It is not unusual for the ECHR to take up to five years to conclude a case, though both Lana and Spijkerboer said that until now the Court has dealt with the case “in a speedy manner.”
The Italian state’s representative for this case, Nicola Lettieri, has not responded to inquiries about the lawsuit.
The outcome of the lawsuit, Spijkerboer said, would decide “whether European countries are allowed to intercept migrant boats and return them to countries of departure without any human rights guarantees.”
If the plaintiffs are victorious, Spijkerboer expects that similar suits will be filed at Strasbourg, for example against Spain. He explained that Spain executes a different variation of Italy’s policy: Spanish vessels try to intercept migrants in West African territorial waters, often carrying a West African official on board.