Case of A.E. and Others v. Italy, (Applications nos. 18911/17 and 2 others)

A selection of key paragraphs can be found below the judgment.

81. The Court reiterates that where an individual is deprived of his or her liberty or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention. It also emphasises that the words “in principle” cannot be taken to mean that there might be situations in which such a finding of a violation is not called for because the relevant severity threshold has not been attained (see Bouyidv. Belgium [GC], no. 23380/09 §§ 86-87, ECHR 2015). Any interference with human dignity strikes at the very essence of the Convention. For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention (ibid., §§ 100-01).

106. The Court considers that the first limb of Article 5 § 1 (f) of the Convention (“the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country”) applies to the facts of the case. In the light of the circumstances described by the applicants and not contested by the Government – namely the arrest and transfer of the applicants, the failure to provide them with any documents, and their being prevented from leaving the facility – the Court concludes that the applicants were arbitrarily deprived of their liberty, in breach of the above-mentioned provision.

107. Moreover, the Court notes the existence of a legislative vacuum due to the lack of specific legislation relating to hotspots, as reported in 2016 by the National Guarantor of the Rights of People Detained or Deprived of their Liberty. The relevant parts of the report, which was compiled following a visit by a delegation from the office of the Guarantor to the Taranto hotspot on 16 June 2016, state that the persons staying at the hotspot could not leave the facility until they had been photographed. This, in the Guarantor’s view, entailed a substantial restriction of their freedom of movement (albeit for a limited time preceding the migrants’ identification) in the absence of an individual detention order.

108. In view of the above finding regarding the lack of a clear and accessible legal basis for the applicants’ detention, the Court fails to see how the authorities could have informed the applicants of the legal reasons for their deprivation of liberty or have provided them with sufficient information or enabled them to challenge the grounds for their de facto detention before a court (see Khlaifia and Others, cited above, §§ 117 and 132 et seq.).

109. Therefore, the Court dismisses the Government’s objection as to the applicants’ failure to exhaust the available domestic remedies and concludes that there has been a violation of Article 5 §§ 1, 2 and 4 of the Convention in respect of the second, third and fourth applicants.