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Case of Khlaifia and Others v. Italy(ECtHR 09.03.2012 (Final on 15.12.2016), Application No. 16483/12)

Khalifa ve Diğerleri v. İtalya (AİHM 09.03.2012 (15.12.2016 tarihinde kesin), Başvuru No. 16483/12)

Elif Beyza AVCI

The case began on 9 March 2012 with three Tunisian citizens applying to the ECHR against the Italian Republic in accordance with Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms.On 17 September the applicants left Tunisia with a rudimentery vessel. After a while, italian coastguard intercepted them then took them to the port on the island of Lampedusa. The applicants were kept in a crowded and dirty center on bad terms. Centre was under police surveillance making any contact with the outside impossible. In 20th of september, a violent revolt broke out among the migrants. At dawn, they managed to evade the surveillance and started a demonstration. After being stopped, the applicants were taking back to the Lampedusa port.They were transferred to ships in the harbour which their conditions were miserable. They had to wait hours for toilets and they slept on the floor. They were insulted and ill treated by the police. The applicants stayed for few days in those ships then they were taken to the airport for removal to tunisia. In their submission, Italy didn’t issued by recording any document.

Right to Liberty and Security, Lawful Detention, Right to an Effective Remedy, Prohibition of Torture, Lawfulness.

Dava, 9 Mart 2012’de İnsan Hakları ve Temel Özgürlüklerin Korunması Sözleşmesinin 34. Maddesi uyarınca AİHM’ye İtalyan Cumhuriyeti’ne karşı başvuran üç Tunus vatandaşı ile başladı.17 Eylül’de başvuranlar, Tunus’tan bir ilkel gemiyle ayrıldılar. Bir süre sonra İtalyan sahil güvenlik tertibatı onları durdurup Lampedusa adasındaki limana götürdü. Başvuranlar, kötü koşullarda kalabalık ve kirli bir merkezde tutuldu. Merkez polis gözetimi altındaydı ve dışla teması olanaksızdı. 20 Eylül’de göçmenler arasında şiddetli bir ayaklanma çıktı. Şafak vakti, göçmenler gözetimden kaçmayı başardı ve bir gösteri başlattı. Bu gösteri polis tarafından durdurulduktan sonra, başvuranlar tekrar Lampedusa limanına götürüldüler. Limanda şartları sefil olan gemilere transfer edildiler. Tuvaletleri kullanmak için birkaç saat beklemek zorunda kaldılar ve yerde yattılar. Polis tarafından hakarete uğradılar ve kötü muamele gördüler. Başvuranlar bu gemilerde birkaç gün kaldıktan sonra, Tunus’a kaldırılmak üzere havaalanına götürüldüler. Ayrıca başvuranların yaptıkları başvurularda İtalya herhangi bir belge kaydettirmemiştir.

Özgürlük ve Güvenlik Hakkı, Hukuki Alıkoyma, Etkili Başvuru Hakkı, İşkence Yasağı, Hukuksallık.

Alleged Violation of Article 5 § 1 of the Convention

The applicants complained that they had been deprived of their liberty in a manner that was incompatible with Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The Government disputed that allegation.

The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law.

The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it is not sufficient for the deprivation of liberty to be executed in conformity with national law, it must also be necessary in the circumstances.

Alleged Violation of Article 5 § 2 of the Convention

The applicants complained about the lack of any kind of communication with the Italian authorities throughout their stay in Italy.

They relied on Article 5 § 2 of the Convention, which reads as follows: “2. Everyone 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.” The Government disputed that allegation.