SECRETARIAT GENERAL

SECRETARIAT OF THE COMMITTEE OF MINISTERS
SECRETARIAT DU COMITE DES MINISTRES

Contact: Mireille Paulus
Tel: 03 88 41 22 55

Date: 25 July/juillet 2012

DH-DD(2012)668

   


Meeting:

1150 DH meeting (24-26 September 2012)

Item reference:

Communication from the applicants’ lawyers in the case of Hirsi Jamaa and others against Italy (Application No. 27765/09)

Information made available under Rule 9.1 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

Appendices 1 to 3 in Italian are available upon request addressed to the Department for the execution of judgments of the European Court of Human Rights.

* * * * * * * * * * *

   


Réunion :

1150 réunion DH (24-26 septembre 2012)

Référence du point :

Communication des avocats des requérants relative à l'affaire Hirsi Jamaa et autres contre Italie (requête n° 27765/09) (Anglais uniquement).

Informations mises à disposition en vertu de la Règle 9.1 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.

Les annexes de 1 à 3 en italien sont consultables, sur demande, auprès du Service de l’exécution des arrêts de la Cour.

Lana – Lagostena Bassi

Lawyers

Avv. Mario Lana

Avv. Augusta LAgostena Bassi

Avv. Anton Giulio Lana

Avv. Mario Melillo

Avv. Andrea Saccucci

Avv. Valentina Rao

Avv. Claudia Odorisio

Avv. Matteo Magnano

Avv. Clara Luscari

Avv. Matteo Zamboni

Avv. Giulio Borgna

Of counsel

Prof. Avv. Sabrina Bruno

Rome, 16 July 2012

Department for the execution of the judgments

of the European Court of Human Rights

Directorate General I

Human Rights and Rule of Law

Council of Europe

67075 Strasbourg CEDEX

France

RE: EXECUTION OF THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 23 FEBRUARY 2012, APPLICATION No. 27765/09, HIRSI JAMAA AND OTHERS V. ITALY

We hereby draw to your attention the problems which have arisen in respect of the execution of the judgment which is the subject of this letter.

I. Introduction

The judgment, delivered by the Grand Chamber on 23 February 2012, found violations by Italy of Article 3 of the EConvHR, of Article 4 of Protocol No. 4 of the EConvHR and of Article 13 of the EConvHR, taken together with Article 3 of the EConvHR and Article 4 of Protocol No. 4 of the EConvHR.

Pursuant to Article 41 of the EConvHR, the Court ordered the Italian Government to pay, to each of the applicants, the sum of €15,000 "plus any tax that may be chargeable, in respect of non-pecuniary damage, which sums are to be held by the representatives in trust for the applicants", as well as the sum of €1,575.74 in respect of costs and expenses sustained for the participation of the undersigned in the hearing of 22 June 2011 before the Grand Chamber (§§213-216 of the judgment). The Court allowed the Italian Government a period of three months to execute the judgment.

Furthermore, with particular reference to the violation of Article 3 of the EConvHR derived from the unlawful push-back of the applicants to Libya, the Court imposed on the Italian Government another, specific obligation, namely to take "all possible steps to obtain assurances from the Libyan authorities that the applicants will not be subjected to treatment incompatible with Article 3 of the Convention or arbitrarily repatriated" (§211 of the judgment).

At all events, the Court stated that the individual measures required are to be understood "without prejudice to the general measures required to prevent other similar violations in the future" (§210 of the judgment).

So although the three-months period allowed by the Court expired on 23 May last, it has to be noted that, to date, Italy has not yet taken steps – in any form – to execute the aforementioned judgment punctually, for the reasons set out below.

2. Just satisfaction

As to the question of the just satisfaction awarded to the applicants, the Ministry of Economic Affairs and Finance, Department for the Central Administration of Staff and Services, Central Directorate of Treasury Services - Office X, did contact the undersigned defence counsel with a letter dated 8 May 2012 (sent just 15 days before the expiry of the deadline for making the payment), requesting fairly detailed documentation in order to be able to start the procedures for payment of the sums awarded in the judgment. Requested, in particular, were the sending of copies of the applicants' identity documents and birth certificates, the original of powers of attorney, as well as the documents of the undersigned defence counsel (see doc. 1).

On 18 May 2012, the undersigned presented to the Ministry for Economic Affairs and Finance - in a letter also attached to this one - the practical problems relating to the requested documentation, which in fact included, for the majority of the applicants, the objective impossibility of complying with that request (see doc. 2).

These problems are, in particular, connected with the circumstance that almost all the applicants of whom there is news and with whom it has been possible to maintain contact are outside the territory of the State of Italy. In fact, after their unlawful push-back to Libya, some applicants succeeded in returning to Europe, and are currently in Switzerland, Sweden and Malta (where they have benefited from international protection); other applicants, in contrast, are currently in States outside Europe (Israel, Benin, Tunisia, United States of America), and not all have already acquired a permanent legal status within those countries.

Not to mention the fact that, in requesting the applicants' personal data, the Government inexplicably feigns ignorance of the indications given by the Court as to the arrangements for payment of the sums due in respect of non-pecuniary damage, which are "to be held by the representatives in trust for the applicants".

The only applicant who, as things stand, is in Italy is Mr Ermias Berhane, who has obtained recognition of refugee status from the competent local Board and is lawfully resident in Rome. With reference to him, we took care to send promptly to the Government the requested documentation, but nevertheless Mr Ermias Berhane has, to date, neither received from the Italian Government payment of the sum awarded to him by the European Court, nor he has received any reply about this.

In any case, the consolidated case-law of the Court should be recalled on the subject of the execution of judgments, and, in particular, the principle according to which the Convention "must be interpreted and applied in such a way as to guarantee rights that are practical and effective" (inter alia Muminov v. Russia, judgment of 4 November 2010, §19). In consideration of which, the Court states that the "respondent State shall secure, by appropriate means, the execution of the just satisfaction award, in particular, by facilitating contact between the applicant, on the one hand, and the Committee of Ministers of the Council of Europe acting under Article 46 of the Convention, the applicant's representative in the Convention proceedings or (…), on the other" (ibid).

In the light of that principle, the Italian Government has an obligation to take any measure necessary to secure the timely execution of the judgment. In the present case, considering the fact that the majority of the applicants are not on the Italian territory, it is incumbent on the Italian Government to locate and trace the applicants, and also to facilitate their return to the Italian territory in order to collect the just satisfaction awarded by the Court.

This, moreover, seems all the more true if it is taken into consideration that the arrangements for payment indicated in the aforementioned letter of 8 May last all require the presence of the applicants on the Italian territory. In particular, the forms of payment provided for are the following: crediting to an Italian bank or postal current account, non-transferable personal promissory note, or payment in cash to the Bank of Italy (but not applicable in the present case because of the limit of €999.99).

The activity aimed at locating and facilitating the return of the applicants does not, however, seem difficult or excessively costly for the Italian Government, given the fact that, as regards a large number of the applicants, the undersigned already have full information about their current place of residence and/or address, as well as their telephone contact numbers (see attached list, doc. 3).

Finally, it has to be noted that the question of payment of just satisfaction does not seem to have been discussed at the latest meeting of the Committee of Ministers, which took place in Strasbourg from 4 to 6 June last – despite the fact that the execution of the Hirsi judgment was on the agenda – as is apparent from decision DH-DD(2012)544F (doc. 4) adopted there.

In substance, with reference to the payment of the just compensation awarded by the Court, there does not seem to be any new obstacle preventing the Italian Government from tracing the applicants and paying the sums due to them, allowing them – where this seems necessary – entry to the Italian territory. Thus the delay in execution of the aforementioned judgment seems completely unjustified.

3. Individual measures

As to individual measures, the European Court ordered the Italian Government to take any measure necessary to obtain from the Libyan authorities assurances that the applicants would not be subject to treatment incompatible with Article 3 of the EConvHR and would not be arbitrarily repatriated.

It has been learnt, from the website of the Committee of Ministers, that the Italian Government did receive formal assurances from Colonel Samir Youssef, Deputy Director of the Department for International Relations at the Libyan Ministry of the Interior, about the treatment that the applicants would receive if they were present on Libyan territory.

However, currently none of the applicants is present in Libya. That circumstance was communicated to both the European Court and the Italian Government well before the judgment was delivered, and, in particular, in the additional briefing filed after the hearing of 22 June 2011 before the Grand Chamber.

Therefore, as one can see, the paragraph of the judgment relating to individual measures raises doubts as to the interpretation of the exact scope of the obligations incumbent on the State of Italy in pursuance of Article 46, para 3 of the EConvHR.

If the purpose of the Court's judgment is to avoid the applicants being subjected to treatment contrary to Article 3 of the EConvHR – whether in Libya or in their respective countries of origin and/or the countries from which they had come – it would be reasonable to place a positive obligation on the Italian Government to secure for the applicants that standard of treatment wherever they currently are, by adopting any protection measure necessary for this purpose.

This seems all the more true if we consider that none of the applicants are present any longer on Libyan territory, precisely because they were unlawfully pushed back by the local authorities.

In particular, Mr Yohannes Robel Abzighi is currently in a refugee camp in Benin, and there is no news of his treatment by the local government. Therefore, as one can see, it is precisely the situation which the Court's judgment was intended to avoid which has occurred, i.e. the arbitrary and indiscriminate expulsion of the applicants by the Libyan authorities, and that even without any assurances as to their treatment in their country of destination!

On the basis of Article 46, para 3 of the EConvHR, "If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation".

In the light of the above, in the opinion of the undersigned, it would be appropriate to bring that problem of interpretation to the attention of the Committee of Ministers, so that it can – in the event that it considers this appropriate – assess the possibility of referring the matter to the Court in pursuance of Article 46, para 3 of the EConvHR. This, obviously, in order to remove an obstacle of interpretation to the execution of the aforementioned judgment.

Reminding you that on 23 May last the three-months deadline set by the judgment of the European Court for execution by Italy of the judgment which is the subject of this letter expired, we would like the Department to intervene to guarantee, in the most prompt and reasonable manner possible, execution of the judgment concerned, while the undersigned defence counsels continue to offer their fullest co-operation.

Yours faithfully,

Avv. Anton Giulio Lana

Avv. Andrea Saccucci

Attached: 1. Memorandum of 8 May 2012, Prot. N. 66870, sent by the Ministry for Economic Affairs and Finance;

2. Letter sent to the Ministry for Economic Affairs and Finance dated 18 May 2012;

3. List of applicants' contact details;

4. Decision DH-DD(2012)544F, adopted by the Committee of Ministers of the Council of Europe on 6 June 2012.



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