EHRM, 15-12-2016, nr. 16483/12

The applicants were born in 1983, 1987 and 1988 respectively. Mr Khlaifia (‘the first applicant’) lives in Om Laarass (Tunisia); Mr Tabal and Mr Sfar (‘the second and third applicants') live in El Mahdia (Tunisia).

On 5 April 2011 the Italian Government entered into an agreement with Tunisia on measures to control the flow of irregular migrants from that country.

The text of the agreement had not been made public. However, appended in an annex to their request for referral to the Grand Chamber, the Government produced extracts from the minutes of a meeting held in Tunis on 4 and 5 April 2011 between the Ministries of the Interior of Tunisia and Italy. According to a press release dated 6 April 2011 on the website of the Italian Ministry of the Interior1.., Tunisia undertook to strengthen its border controls with the aim of avoiding fresh departures of irregular migrants, using logistical resources made available to it by the Italian authorities.

In addition, Tunisia undertook to accept the immediate return of Tunisians who had unlawfully reached the Italian shore after the date of the agreement. Tunisian nationals could be returned by means of simplified procedures, involving the mere identification of the person concerned by the Tunisian consular authorities.

According to the indications given by the Government in their written observations of 25 April 2016 before the Grand Chamber, there had been an initial agreement with Tunisia in 1998; it had been announced on the Interior Ministry's website, added to the treaty archive of the Ministry of Foreign Affairs and International Cooperation and published in Official Gazette no. 11 of 15 January 2000.

The Government produced a note verbale concerning the bilateral agreement that Italy concluded with Tunisia in 1998, appending it in an annex to their request for referral to the Grand Chamber. The document in question, emanating from the Italian Government and dated 6 August 1998, and which does not seem to be the text applied in the applicants' case (see paragraph 103 below), contains provisions on bilateral cooperation for the prevention and repression of illegal immigration, the readmission of the two countries' nationals, the return of nationals of third countries outside the Arab Maghreb Union to their countries of last departure, and the taking-back of migrants after readmission in error.

The text of the note verbale shows that the Italian Government agreed to support Tunisia's efforts to combat illegal immigration by providing technical and operational material assistance and by making a financial contribution. Each Party undertook, at the request of the other Party and without further formality, to readmit into its territory any person who did not meet the conditions of entry or residence applicable in the requesting State, in so far as it had been established that the person concerned was a national of the requested State. The text refers to the documents required for the identification of those concerned and provides (part II, point 5) that if the consular authority of the requested State considers it necessary to hear the person concerned, a representative of the authority of that State may go to the court office, or to the reception centre or medical facility where the migrant is legally residing, in order to interview him or her.

The note verbale also describes the procedure for issuing a laissez-passer and for the removal of migrants, while indicating the Italian Government's undertaking ‘not to resort to mass or special removals’ of the persons concerned.

In the European Union (EU) context, the return of irregular migrants is governed by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 (the ‘Return Directive’) ‘on common standards and procedures in Member States for returning illegally staying third-country nationals’. The Directive contains the following provisions in particular:

Article 1

Subject matter

Article 2

Scope

Article 8

Removal

Article 12

Form

Article 13

Remedies

Article 15

Detention

Article 16

Conditions of detention

Article 18

Emergency situations

When interpreting the Return Directive, the Court of Justice of the European Union (CJEU) held that an alien was entitled, before a decision to return him or her was adopted, to express his or her view on the legality of his or her stay (see, in particular, Khaled Boudjlida v. Préfet des Pyrénées-Atlantiques, case C-249/13, judgment of 11 December 2014, §§ 28–35).

It can be seen from the CJEU's case-law that, in spite of the lack of express provision for the right to be heard in the Return Directive, that right applies as a fundamental principle of EU law (see, in particular, Articles 41, 47 and 48 of the EU's Charter of Fundamental Rights; also the judgments M.G. and N.R v. Staatssecretaris van Veiligheid en Justitie, C-383/13 PPU, 10 September 2013, § 32, and Sophie Mukarubega v. Préfet de police et Préfet de la Seine-Saint-Denis, C-166/13, judgment of 5 November 2014, §§ 42–45).

The CJEU clarified that the right to be heard:

In the Khaled Boudjlida judgment (cited above, §§ 55, 64–65 and 67), the CJEU added:

In the CJEU's view, a decision taken following an administrative procedure in which the right to be heard has been infringed will result in annulment only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see M.G. and N.R, cited above, §§ 38 and 44, concerning decisions to extend detention pending removal; in §§ 41–43 of that judgment it is stated that the Directive's effectiveness would otherwise be undermined and the objective of removal called into question).

Lastly, the CJEU has held that the right to be heard can be subjected to restrictions, provided they correspond to objectives of general interest and do not involve, with regard to the objective pursued, a disproportionate and intolerable interference which infringes upon the very substance of the right guaranteed (see M.G. and N.R., cited above, § 33, and Sophie Mukarubega, cited above, §§ 53 and 82, where it is stated that the person concerned does not have to be heard by the national authorities twice, both on his or her application to stay and on a return decision, but only on one of those questions).

In a document of 9 July 2013 containing their additional observations and submissions on just satisfaction before the Chamber, the Government for the first time raised an objection that domestic remedies had not been exhausted, on the ground that the applicants had not appealed to the Italian judicial authorities against the refusal-of-entry orders.

The Chamber took the view that the Government were estopped from raising the objection that domestic remedies had not been exhausted. It pointed out that under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party, in so far as the nature of the objection and the circumstances so allowed, in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). In the present case, the Government had not clearly raised an objection as to the non-exhaustion of domestic remedies in their observations of 25 September 2013 on the admissibility and merits, and the question of a failure by the applicants to lodge an appeal against the refusal-of-entry orders was raised only in their additional observations and submissions on just satisfaction. The Chamber further noted that the Government had not provided any explanation for that delay and that there was no exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner (see paragraphs 38 and 39 of the Chamber judgment).

The Grand Chamber does not see any reason to depart from the Chamber's findings on that point. It further notes that during the proceedings before it the Government did not indicate any impediment by which they had been prevented from referring, in their initial observations of 25 September 2013 on the admissibility and merits of the case, to a failure by the applicants to challenge the refusal-of-entry orders.

It is therefore appropriate to confirm that the Government are estopped from relying on a failure to exhaust domestic remedies.

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:

The applicants complained that they had not had 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:

The McGill Centre observed that the right to be informed of the reason for detention was necessary in order to be able to challenge the lawfulness of the measure. The United Nations working group on arbitrary detention required that the information given to the detainee at the time of his or her arrest had to explain how the detention could be challenged. The Centre added that the lawfulness of the detention had to be open to regular review when it was extended.

The Chamber found that, since the applicants had not been informed of the reasons for their deprivation of liberty, their right to have its lawfulness decided had been deprived of all effective substance. This consideration sufficed for the Chamber to find that there had been a violation of Article 5 § 4 of the Convention. It additionally observed that the refusal-of-entry orders did not mention the legal or factual basis for the applicants' detention and that the orders had been notified to the applicants shortly before their return by plane, and therefore at a time when their deprivation of liberty had been about to end. Accordingly, even assuming that the lodging of an appeal against those orders with the Justice of the Peace could be regarded as affording an indirect review of the lawfulness of the detention, such an appeal could not have been lodged until it was too late (see paragraphs 95–98 of the Chamber judgment).

The Chamber began by noting that, following the events surrounding the ‘Arab Spring’, in 2011 the island of Lampedusa had been facing an exceptional situation characterised by mass arrivals of migrants and a humanitarian crisis, burdening the Italian authorities with many obligations and creating organisational and logistical difficulties (see paragraphs 124-27 of the Chamber judgment). However, in the Chamber's view, those factors could not release the respondent State from its obligation to secure to the applicants conditions of confinement that were compatible with respect for their human dignity, having regard to the absolute nature of the Article 3 rights (see paragraph 128 of the Chamber judgment).

The Chamber then found it appropriate to deal separately with the conditions in the CSPA and on the ships (see paragraph 129 of the Chamber judgment). As to the first situation, it took the view that the applicants' allegations about the overcrowding problem and general insalubrity of the CSPA were corroborated by the reports of the Senate's Special Commission, Amnesty International and the PACE Ad Hoc Sub-Committee, thus finding a violation of Article 3 of the Convention, in spite of the short duration of their confinement — between two and three days (see paragraphs 130-36 of the Chamber judgment).

The Chamber reached the opposite conclusion as to the applicants' detention on the ships. It observed that the applicants had been held on the ships for between six and eight days, and that the allegations of poor conditions had been at least partly contradicted by the decision dated 1 June 2012 of the Palermo preliminary investigations judge, whose findings were in turn based on the observations of a member of parliament who had visited the ships and had talked to some of the migrants. In the Chamber's view, the fact that the MP had been accompanied by the deputy chief of police and police officers did not, in itself, cast doubt on his independence or on the veracity of his account. The Chamber thus found that there had been no violation of Article 3 under this head (see paragraphs 137-44 of the Chamber judgment).

The Coordination Française pour le droit d'asile, a coalition which submitted written comments on behalf of four associations (Avocats pour la défense des droits des étrangers, Groupe d'information et de soutien des immigré.e.s (GISTI), Ligue des droits de l'homme et du citoyen and the International Federation for Human Rights (Fédération internationale des ligues des droits de l'Homme — FIDH)), asked the Grand Chamber to ‘solemnly uphold’ the Chamber judgment. It submitted that it was necessary to take into account the vulnerability of the migrants, and particularly those who had endured a sea crossing, in assessing the existence of treatment contrary to Article 3 of the Convention. It acknowledged that the Court had rarely found a violation of that Article in cases of short-term detention, and only in the presence of aggravating circumstances. However, the vulnerability of the migrants, combined with conditions of detention that impaired their human dignity, was sufficient for a finding that the level of severity required by Article 3 had been reached. This had been confirmed by the case-law developed by the Court in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), by the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and by the observations of the UNHCR. Moreover, conditions of detention were a major factor in the deterioration of the mental health of migrants.

The Chamber noted that the applicants had been issued with individual refusal-of-entry orders, but that those orders nevertheless contained identical wording and the only differences were to be found in their personal data. Even though the applicants had undergone an identity check, this was not sufficient in itself to rule out the existence of a collective expulsion within the meaning of Article 4 of Protocol No. 4. In addition, the refusal-of-entry orders did not contain any reference to the personal situations of the applicants and the Government had failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place. The Chamber also took account of the fact that a large number of individuals of the same origin, around the time of the events at issue, had been subjected to the same outcome as the applicants. It observed that the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned. Those elements sufficed for the Chamber to find that the applicants' expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached (see paragraphs 153-58 of the Chamber judgment).

The Chamber began by considering that, to the extent that the applicants relied on Article 13 in conjunction with Article 5, their complaint was covered by the Court's findings under Article 5 § 4 (see paragraph 161 of the Chamber judgment).

It went on to find a violation of Article 13 taken together with Article 3. It observed that the Government had not indicated any remedies by which the applicants could have complained about the conditions of their accommodation in the CSPA or on the ships. Moreover, an appeal to the Justice of the Peace against the refusal-of-entry orders would have served merely to challenge the lawfulness of their removal to Tunisia, and those orders had been issued only at the end of their period of confinement (see paragraphs 168-70 of the Chamber judgment).

In addition, the Chamber noted that in the context of an appeal against the refusal-of-entry orders, the Justice of the Peace could assess their lawfulness in the light of domestic law and the Italian Constitution. The Chamber found that the applicants could thus have complained that their expulsion was ‘collective’ in nature and that there was nothing to suggest that such a complaint would have been disregarded by the judge. Nevertheless, the orders expressly stipulated that the lodging of an appeal with the Justice of the Peace would not have suspensive effect, and this appeared to run counter to the case-law set out by the Grand Chamber in its De Souza Ribeiro v. France judgment ([GC], no. 22689/07, § 82, ECHR 2012). On that basis the Chamber found a violation of Article 13 taken together with Article 4 of Protocol No. 4 (see paragraphs 171-73 of the Chamber judgment).

The AIRE Centre and ECRE argued that, even in the absence of an express indication to that effect, the Return Directive (see paragraph 41 above) and the Schengen Borders Code, read in the light of the Convention and the EU Charter of Fundamental Rights, should be interpreted to mean that in the event of collective expulsion, remedies against removal should have automatic suspensive effect.

The Court would begin by observing, as the Chamber did, that, according to its settled case-law, Article 5 § 4 of the Convention provides a lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II, and Ruiz Rivera v. Switzerland, no. 8300/06, § 47, 18 February 2014). In the present case, the facts giving rise to the applicants' complaint under Article 13 of the Convention in conjunction with Article 5 are identical to those already examined under Article 5 § 4, and are thus covered by the Court's findings under the latter provision (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 60, Series A no. 77, and Chahal, cited above, §§ 126 and 146).

It remains to be examined whether there has been a violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4.

The applicants claimed 65,000 euros (EUR) each in respect of the non-pecuniary damage that they alleged to have sustained. They argued that this amount was justified on account of the gravity of the violations of which they were victims. They requested that this sum be paid into their own Tunisian bank accounts.

The Government took the view that the applicants' claims for just satisfaction were ‘unacceptable’.

Having regard to the particular circumstances of the case and to the conclusions it has reached as to the applicants' various complaints, the Court finds that each applicant should be awarded EUR 2,500 in respect of non-pecuniary damage, amounting to a total of EUR 7,500 for all three applicants.

The applicants also claimed EUR 25,236.89 for the costs and expenses incurred by them before the Court. That sum covered: the travel expenses of their representatives for a visit to Tunis (EUR 432.48); the travel expenses of their representatives for attendance at the Grand Chamber hearing (EUR 700); the translation of the observations before the Chamber (EUR 912.03) and before the Grand Chamber (EUR 1,192.38); the consultation of a lawyer specialising in international human rights law (EUR 3,000) and a lawyer specialising in immigration law (EUR 3,000); and the fees of their representatives in the proceedings before the Court (in total, EUR 16,000). The applicants' representatives stated that they had advanced those expenses and requested that the sum awarded be paid directly into their respective bank accounts.

The Government submitted no observations on this point.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers excessive the total sum claimed for the costs and expenses incurred in the proceedings before it (EUR 25,236.89). It decides to award EUR 15,000 under that head to the applicants jointly. That sum is to be paid directly into the bank accounts of the applicants' representatives (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013).

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

As to the conditions in which the applicants were held in the Contrada Imbriacola CSPA, the Chamber first noted that, on account of the events surrounding the ‘Arab Spring’, the island of Lampedusa had had to deal with an exceptional situation in 2011, characterised by significant arrivals of migrants and a humanitarian crisis, thus placing many obligations on the Italian authorities and creating organisational and logistical difficulties (see paragraphs 124-27 of the Chamber judgment). However, in the Chamber's view those factors could not release the respondent State from its obligation to guarantee that the conditions of the applicants' detention were compatible with the principle of respect for their human dignity, having regard to the absolute terms of Article 3 of the Convention (see paragraph 128 of the Chamber judgment). The Chamber then took the view that the reports of the Italian Senate's Special Commission, of Amnesty International and of the PACE Ad Hoc Sub-Committee corroborated the applicants' allegations about the overcrowding and general lack of hygiene in the CSPA, hence the finding of a violation of Article 3 of the Convention in spite of the short length — two or three days — of the applicants' stay in the centre (see paragraphs 130-36 of the Chamber judgment).

Having reconsidered the situation in the light of the Grand Chamber's deliberations, I now believe that it is true that, in view of the exceptional nature of the situation and other factors such as the applicants' young age and good health, and especially the brevity of the period in which they were exposed to the undeniably difficult living conditions in the Contrada Imbriacola CSPA, the solution adopted by the majority should be approved. It is particularly consistent with the Court's solution in the case of Aarabi v. Greece (no. 39766/09, §§ 42–51, 2 April 2015), concerning the detention pending removal of a young Lebanese migrant, during which he had been held for a very short period (11 to 13 July 2009) on coastguard premises on the island of Chios, and in other facilities (including thirteen days at the Mersinidi detention centre, which had not been criticised in international reports in respect of the relevant period; and a report for a subsequent period had not, in any event, mentioned any problems of hygiene).

The present judgment clearly highlights the situation of extreme difficulty facing the Italian authorities at the relevant time, on account of an exceptional influx of migrants and complications resulting from the revolt in the CSPA.

Therefore, as stated by the Grand Chamber, while the constraints inherent in such a crisis cannot, in themselves, justify a breach of Article 3, it would certainly be artificial to examine the facts of the case without taking into account the general context.

With that premise in mind, I fully share the Grand Chamber's analysis and findings on this point (see, in particular, paragraphs 187–201 of the judgment).

As to the question whether, in the present case, the measure taken constituted a collective expulsion, as prohibited by Article 4 of Protocol No. 4 to the Convention, the Grand Chamber has replied in the negative.

The Chamber, for its part, noted that the applicants had been returned on the basis of individual refusal-of-entry orders, but that those orders were drafted in identical terms, the only differences being the personal details. In the Chamber's view, even though the applicants had undergone an identification procedure, that did not, in itself, show that there had not been a collective expulsion within the meaning of Article 4 of Protocol No. 4. In addition, the Chamber observed that the refusal-of-entry orders did not contain any reference to the applicants' personal situations and that the Government had not produced any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place. The Chamber also took account of the fact that a large number of individuals of the same origin had, in the relevant period, been returned in the same manner as the applicants, and it pointed out that the bilateral agreement of April 2011 between Italy and Tunisia — which had not been made public — provided for the readmission of irregular migrants from Tunisia through simplified procedures, merely on the basis of the identification by the Tunisian consular authorities of the individuals concerned. The Chamber found these elements to suffice for it to reach the conclusion that the expulsion was collective in nature.

The factors highlighted by the Chamber are not insignificant, because the mechanism in place enabled the authorities, in substance, to remove the applicants merely on the basis of their being part of a group, without specifically inviting them to submit any reasons that might support an application for international protection.

However, I would observe, firstly, that I find the analysis of the facts by the Grand Chamber to be reasonable. The judgment notes that upon their first identification, which, according to the Government involved the taking of photographs and fingerprints (see paragraph 224 of the judgment), as well as at any other time during their detention in the CSPA and on board the ships, the applicants had an opportunity to inform the authorities of any reasons that might justify their stay in Italy or preclude their return. The judgment also emphasises the fact that, as the Government (see paragraph 225 of the judgment) and the Palermo preliminary investigations judge (paragraphs 25 and 27) pointed out, without this being denied by the applicants, seventy-two migrants in the Lampedusa CSPA at the time of the fire had expressed their intention to submit an asylum application, thereby halting the return procedure concerning them and resulting in their transfer to other reception centres. It is true that the applicants declared that their personal circumstances did not enable them to seek international protection (see paragraph 222 of the judgment), but, as noted by the Grand Chamber, the possibility of lodging an asylum application in the context of an expulsion procedure is a paramount safeguard and there is nothing to suggest that the Italian authorities, which were prepared to listen to migrants wishing to invoke the non-refoulement principle, would have remained unresponsive if they had been made aware of other legitimate and legally arguable impediments to the applicants' removal.

Secondly, the Chamber's main concern was to protect the applicants from an expulsion that had not been preceded by a stringent examination of their personal situations, but the following comments can be seen to address that concern.

In the light of the Grand Chamber's deliberations, I can agree with the level of protection laid down in paragraph 248 of the judgment, where it is stated that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; and that the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State.

I thus approve the finding that there has been no violation of Article 4 of Protocol No. 4 to the Convention.

As to the complaint alleging a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4, the majority in the Chamber, finding a violation of that provision, noted that in the context of an appeal against the refusal-of-entry orders, the Justice of the Peace was entitled to assess the lawfulness of the orders in the light of domestic law and the Italian Constitution. The Chamber concluded that the applicants could have complained about the collective nature of their expulsion and that there was nothing to show that such a complaint would have been disregarded by the Justice of the Peace. Nevertheless, according to the Chamber, an appeal to the Justice of the Peace would not have had suspensive effect, and that appeared to run counter to the case-law set out by the Grand Chamber in De Souza Ribeiro v. France ([GC], no. 22689/07, § 82, ECHR 2012).

Following the Grand Chamber's deliberations, I have no difficulty acknowledging that the Chamber's reading of the De Souza Ribeiro v. France judgment went beyond what was required by that case-law.

As to the lack of suspensive effect of the procedure in question, the Grand Chamber notes that while De Souza Ribeiro seemed to establish a need for ‘a remedy with automatic suspensive effect … for complaints under Article 4 of Protocol No. 4’, the last sentence of paragraph 82 of that judgment has to be understood in the light of the whole paragraph, which established an obligation for States to provide for such a remedy where the person concerned alleged that the enforcement of the expulsion would expose him or her to a real risk of ill-treatment in breach of Article 3 of the Convention or of a violation of his or her right to life under Article 2, on account of the irreversible nature of the harm that might occur if the risk materialised. The Grand Chamber further notes that the last statement in paragraph 82 of the De Souza Ribeiro judgment is corroborated by the citation of the judgments in Čonka v. Belgium (no. 51564/99, §§ 81–83, ECHR 2002-I) and Hirsi Jamaa and Others v. Italy ([GC], no. 27765/09, § 206, ECHR 2012). However, those two cases concerned situations in which the applicants had sought to alert the national authorities to the risk that they might be subjected to treatment in breach of Article 3 of the Convention in the destination countries, and not to any allegation that their expulsion from the host State was collective in nature.

I share that reading of the De Souza Ribeiro case-law and the Grand Chamber's conclusion that where, as in the present case, an applicant does not allege that any violations of Articles 2 and 3 of the Convention could arise in the destination country, removal from the respondent State would not expose him or her to potentially irreversible harm and the existence of a suspensive remedy is not therefore necessary to meet the requirements of Article 13 of the Convention taken together with Article 4 of Protocol No. 4.

In conclusion, I believe that this important judgment provides balanced and reasonable answers to the difficult questions raised in the present case, and contributes to establishing the Court's case-law on key points in the context of an unprecedented migration crisis which will certainly continue to cause applications to be sent to Strasbourg. Such applications on migration matters, whether they are already pending or will be arriving henceforth, will be examined by the Court on the basis of particularly precise and clear jurisprudential principles, especially now that the present judgment has made a significant contribution to the consolidation of the relevant case-law.

It is clear from the judgment (paragraph 250) that the second identification that the applicants underwent was carried out before they boarded the planes for Tunis by the Tunisian Consul and not by a representative of the Italian authorities. That was precisely in accordance with the simplified procedure, on the basis of the mere identification of the person concerned by the Tunisian consular authorities, as provided for in bilateral agreements with Tunisia and as mentioned in the above quoted passage from the Chamber judgment (§ 156).

In the procès-verbal of a meeting between the Minister of the Interior of the Tunisian Republic and the Minister of the Interior of the Italian Republic, at Tunis on 4 and 5 April 2011 (Annex 2ter to the referral request, § 2), it was agreed, inter alia, that ‘[t]he nationality of those Tunisian nationals who arrive in Italy after the signing of this procès-verbal will be verified by a simplified method at their place of arrival in Italy’. The 2011 agreement refers to and complements an earlier bilateral agreement, provided for in an Exchange of Notes of 6 August 1998 (note verbale, Annex 2 to the referral request). This more comprehensive text, under the heading ‘Readmission of nationals of the two countries’ (Part II, § 1), states that it was agreed between the two countries as follows:

Under paragraph 5 of the same Part of the note verbale there was no mandatory obligation to conduct a personal interview, since this was apparently an exceptional measure at the discretion of the consular authority of the requested State (i.e. Tunisia, in the present case), with the aim of establishing the migrant's nationality:

Neither does the 2011 agreement refer to any mandatory interview, merely that the ‘readmission must in all circumstances take place in the presence of the Tunisian consular authority’.

As is rightly mentioned in the applicants' observations of 22 April 2016 (§ 64), they ‘were returned to Tunisia from Italy simply on the basis of their identification as Tunisian nationals and without proper examination of their personal situation’. This is also apparent from the admission of the Government in their request for referral to the Grand Chamber (§ 10), which reads as follows (all placed in emphasis in the original text):

From the said bilateral agreements and the annexes to the note verbale, the texts of which are also attached to the Government's referral request, it is obvious that the purpose of the agreements was to reinforce cooperation between the two countries, by readmitting into their respective territories any person who did not meet the conditions of entry or residence, on the basis of nationality alone, without further formalities or a substantial personal interview and excluding the assistance of a lawyer. To the extent that any bilateral agreement does not require mandatory personal interviews for the collective expulsion of aliens, I believe that it violates the provisions of Article 4 of Protocol No. 4. Such a violation, with due respect, occurred in the present case, since these bilateral agreements were adhered to, instead of the provisions of Article 4 of Protocol No. 4, with the result that the competent authorities did not conduct any personal interviews. Since the bilateral agreement of 5 April 2011 had not been made public (see paragraph 37 of the judgment) and the applicants did not know why personal interviews were not conducted, the violation becomes even more striking. According to the case-law of this Court, States are considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 128, ECHR 2010, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 154, ECHR 2005-VI).

There has never been any reservation or declaration by Italy regarding Article 4 of Protocol No. 4. The only reservation made by Italy to Protocol No. 4 concerned Article 3, which was not applicable in the present case, and, in any event, concerned only the royal family and had been withdrawn on 12 November 2012. The fact that Italy has made no reservation or declaration regarding collective expulsions of Tunisian nationals, on the basis of its bilateral agreements with Tunisia, did not enable Italy to proceed in the present case on the basis of these agreements rather than that of Article 4 of Protocol No. 4.

As Professor James Crawford (Judge of the International Court of Justice) rightly observes, ‘collective expulsion of aliens is a serious breach of international law’ (see James Crawford, ‘Chance, Order, Change: The Course of International Law’, Collected Courses of the Hague Academy of International Law, vol. 365, Leiden/Boston, 2013, p. 208, § 350). More specifically, he comments as follows:

The majority point out that ‘Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances’, and that ‘the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State’ (paragraph 248 of the judgment). They also observe that ‘the applicants' representatives both in their written observations and the public hearing …, were unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients' presence on Italian territory and preclude their removal’. They continue by remarking that ‘[t]his calls into question the usefulness of an individual interview in the present case’ (paragraph 253 of the judgment).

I believe, however, that for the purposes of Article 4 of Protocol No. 4 the procedural obligation of the competent national authorities to conduct a personal interview is indispensable. This obligation would serve to fulfil the aim of the provision. It is clearly a safeguard to be applied without exception, and thus does not undermine the prohibition formulated in absolute terms. The prohibition of collective expulsion in that Article is, ultimately:

Because of their nature, collective expulsions of aliens are presumed to be carried out arbitrarily and in a discriminatory manner, unless, of course, it is guaranteed to each alien that the procedural obligation will be fulfilled by the State concerned.

With all due respect, I am unable to follow the interpretation of Article 4 of Protocol No. 4 adopted by the majority, for the following reasons:

The majority adopt the Government's view that the applicants really underwent a personal interview, even though the Chamber (see Chamber judgment, § 156) found that there was absolutely no evidence to support the Government's general contention that each situation had been assessed individually, and moreover, despite the fact that the Government did not challenge this finding by the Chamber in their referral request. The applicants rightly pointed out in their observations (cited above, § 80), that this failure by the Government to challenge the finding should have been seen by the Court as the Government's acceptance of the facts as presented in the Chamber judgment.

Irrespective of what is said in the previous paragraph — to be explained in more detail below — the Government adduced no evidence that personal interviews had been conducted, but only raised general, vague, unproven and unconvincing allegations.

It should be observed that the procedural guarantee of Article 4 of Protocol No. 4 applies only to cases of collective expulsion of aliens, and not to the case of an expulsion of an alien who entered the territory of a State not as a member or part of a group but alone (individual expulsion). On the contrary, Article 3 § 2 of Protocol No. 4 provides for the non-deprivation of the right of a person to enter and move within the territory of the State of which he or she is a national. So, in my view, the aim of Article 4 of Protocol No. 4 was to prohibit collective expulsion of aliens as such and not to guarantee, as the majority decide, that every alien who enters a State should at least be able to rely on international or other legal protection, or on the non-refoulement principle.

In the applicants' observations to the Court (cited above, § 127), they say — while at the same time hoping that it will not happen — that it ‘would be a serious and unjustified backward step in human rights protection in the field of expulsion’, for this Court, not ‘to confirm the principle that foreign nationals, whatever their legal status, can only be expelled or deported after the person concerned has been granted an individual interview with the authorities'. I believe this statement is correct, especially considering the evolutive or dynamic approach of the Court in relation to the interpretation of other provisions of the Convention. The Court has on many occasions held that the Convention is a ‘living instrument’ and has given a broad interpretation, expanding the fundamental rights and freedoms. In the present case, however, the majority attach a restrictive interpretation to the essence of an absolute procedural right, contrary to the Court's approach to another absolute right, namely the right to be free from torture or inhuman or degrading treatment or punishment under Article 3 (see, inter alia, Tyrer v. the United Kingdom, 25 April 1978, § 81, Series A no. 26, and Bouyid v. Belgium [GC], no. 23380/09, § 90, ECHR 2015). Such an interpretation of Article 4 of Protocol No. 4 is, in my view, contrary to the wording and object of the relevant provision and departs from the previous case-law of the Court.

The idea that the Convention is a living instrument, together with the principle of effectiveness (‘effet pratique’,‘ut res magis valeat quam pereat’), forming the ‘bedrock’ of evolutive interpretation (as characterised by R.C.A. White and C. Ovey (eds) in Jacobs, White and Ovey, The European Convention on Human Rights (fifth edition, Oxford, 2010, pp. 73 et seq.), are particularly referred to by the Court in Hirsi Jamaa and Others v. Italy ([GC], no. 27765/09, § 175, ECHR 2012), when dealing with Article 4 of Protocol No. 4 as follows:

Though the above passage, invoked by the applicants in their observations (cited above, § 81), concerns a different issue of interpretation of Article 4 of Protocol No. 4, a similar effective interpretation should be applied when it comes to the issue in question.

The effectiveness of the provision of Article 4 of Protocol No. 4, like any other provision of the Convention, is ensured by taking into account its object and purpose in good faith. As the International Law Commission Report 1966 (Yearbook of the International Law Commission [YBILC], 1966, vol. II, p. 239, § 6) pertinently expounded:

In my view, good faith and the objects and purposes of Article 4 of Protocol No. 4 require the need to conduct personal interviews invariably in all collective expulsion cases. Without doubt, States have an obligation to act in good faith in using their power to expel a group of aliens.

One should also note in this respect what was said very profoundly by Professor Rudolf Bernhardt, a former President of the Court, in his article entitled ‘Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights’ (German Yearbook of International Law, vol. 42 (1999), 11 at p. 14):

Moreover, at page 16 he also made the following comment about the role of the object and purpose of a treaty:

In Hirsi Jamaa and Others (cited above, § 177) it was clearly held as follows:

It appears from the above statement (especially from the absolute terms ‘without examining’ and ‘without enabling’), which encapsulates the principle of the existing case-law to date, that the procedural obligation under Article 4 of Protocol No. 4 is mandatory, giving no discretion to the States not to exercise it (note the words ‘to prevent States being able to remove’, emphasis added). The right of all aliens in a collective expulsion scenario is an autonomous procedural right. The said provision and the relevant case-law do not go to the merits of the case or to the results of compliance with the procedural obligation. Besides, according to the above passage, an alien can put forward his or her arguments against the measure taken by the relevant authority and this does not apply only when there is an effective possibility of submitting arguments against expulsion, for example in an asylum procedure. Without a personal interview, as was the case here, there is automatically a violation of Article 4 of Protocol No. 4. It is immaterial what the applicants' lawyers said in the oral hearing, namely that ‘the applicants' individual circumstances did not enable them to rely on international protection or the non-refoulement principle’ (see paragraph 222 of the judgment). That cannot, in my view, undermine the applicants' case, because what was important for them was to have an interview and have the right to put forward their arguments against the measure taken, whether these arguments were valid or not, and whether or not they had any arguments at all, considering that they did not have, at the time, the assistance of a lawyer to explain their legal rights to them. Their lawyers in the oral hearing said that they were not in a position to say on which legal grounds their clients could have relied to justify their stay in Italy. And that was, of course, a genuine statement, since the applicants have not applied ex post facto for leave to remain in Italy or called for a remedy to that end. They have only challenged before the Court the failure by the Italian authorities to comply with their procedural obligation under Article 4 of Protocol No. 4.

In the judgment (see paragraph 237) under the section ‘principles established in the Court's case-law’, it is rightly stated that:

An examination cannot, of course, be reasonable and objective, as stated in this passage, without a personal interview conducted by the authorities.

The prohibition of collective expulsion in Article 4 of Protocol No. 4 concerns only the procedure and not the substantive grounds for expulsion. Unlike Article 1 § 2 of Protocol No. 7, which makes provision for grounds unconditionally permitting an individual expulsion of aliens lawfully resident in the territory of a State (i.e. expulsion ‘necessary in the interest of public order’ or ‘grounded on reasons of national security’), Article 4 of Protocol No. 4 does not contain a similar provision, but only a prohibition of collective expulsion.

Even supposing that Article 4 of Protocol No. 4 were to guarantee, apart from a procedural right, also a substantive right, imposing correspondingly on the national authorities both a procedural and a substantive obligation, a failure to fulfil the procedural obligation would suffice to violate Article 4 of Protocol No. 4. This is the case regarding other provisions of the Convention, such as Articles 2, 3 and 8, on which the jurisprudence is clear, namely that these provisions guarantee both substantive and procedural rights and that the corresponding obligations of the State are separate, independent and autonomous. For instance, in Celniku v. Greece (no. 21449/04, §§ 54, 59 and 70, 5 July 2007) the Court found a violation of Article 2 of the Convention only under its procedural head, and not also under its substantive head.

The applicants rightly argued in their observations (cited above, § 126) that their interpretation of Article 4 of Protocol No. 4 was in line with customary international law and the case-law of the Court of Justice of the European Union, to the effect that aliens have the right to express their views on the legality of their stay. This argument may receive support from the principle of ‘external coherence’, according to which ‘a treaty cannot be interpreted in vacuum, but must be considered as part of a wider legal system’ (see Daniel Rietiker, ‘The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law — No Need for the Concept of Treaty Sui Generis’, Nordic Journal of International Law, vol. 79, no. 2 (2010), p. 271). It is to be noted that pursuant to Article 31 § 3(c) of the VCLT, ‘[t]here shall be taken into account, together with the context: … (c) Any relevant rules of international law applicable in the relations between the parties'.

All the third parties which intervened in the proceedings before the Grand Chamber used cogent arguments in line with the applicants' interpretation of Article 4 of Protocol No. 4. The Coordination Française pour le droit d'asile ‘took the view that the Chamber judgment fell squarely within the logic of the Court's case law … and was in phase with the relevant international practice …’ (see paragraph 230 of the judgment). They further argued that: ‘The absence of an explicit request for asylum did not release the State from that obligation. The expulsion of migrants without thoroughly examining their individual situation would significantly increase the risk of a breach of the non-refoulement principle’ (see paragraph 230 of the judgment). The McGill Centre pertinently observed that ‘[i]t could be seen from the Court's case-law that there was a presumption of ‘collective’ expulsion where there was an expulsion of aliens as a group. The State would then have a duty to show that it had guaranteed a fair and individual procedure to each expelled individual through a reasonable and objective examination of his or her specific situation’ (paragraph 233 of the judgment). Lastly, the AIRE Centre and ECRE rightly argued as follows (paragraph 235 of the judgment):

One may conclude from the above that, for the obligation of a State to be fulfilled effectively under Article 4 of Protocol No. 4, it must first be given effect through the procedure of a personal interview.

As to the facts, the majority accept the Government's submission that there had been personal interviews with the applicants, carried out in the presence of an interpreter or cultural mediator, the records of which, however, had been destroyed by fire during a revolt, and reject the applicants' claim that there had been no personal interviews at all. With due respect, the majority made this finding without considering that the burden of proof as to the existence of a personal interview was on the Government, which had produced no evidence to the Court, or that the Chamber had made a finding on this point, in favour of the applicants, which had not been challenged by the Government in their referral request.

The majority consider plausible the explanation given by the Government that the applicants' information sheets had been destroyed in the fire, as well as considering it reasonable to assume that, since a number of specialists worked at the Early Reception and Aid Centre (CSPA), these persons must have intervened to facilitate communication and mutual understanding between the migrants and the Italian authorities.

Even assuming that the Government's submission that the documents in question were destroyed in the fire on 20 September 2011 was true, since the applicants were in Italy for at least a further week the Italian authorities should have conducted another interview and should have made a fresh record — an obligation which they signally failed to fulfil. On the contrary, the second identification prior to the applicants' departure from Italy was carried out by a representative of a third State, and not by the Italian authorities (see paragraph 250 of the judgment). The Government did not give any explanation at all as to why their authorities had not proceeded with a second interview, since the records of the first interview had been destroyed by fire. Even assuming that the authorities had been facing some administrative difficulties at the material time on account of the revolt, they should have abstained from proceeding with the expulsions until they were able to repeat the personal interviews.

In the relevant refusal-of-entry orders (see the text thereof in paragraph 19 of the judgment) only a reference to the identification of the applicants was made, without anything being said about a personal interview, and this is another strong indication, or even proof, that no such interview was conducted. The similarity between the orders, with their otherwise identical wording, generally reflects the failure to take account of the applicants' personal circumstances.

I believe that no reasonable assumption in favour of the Government's line of argument could be drawn from the fact that a number of specialists were working at the CSPA, as the majority accept. If there was an interview assisted by an interpreter or a cultural mediator, all of the persons involved in the interview should have been named by the Government and could have been made available to offer evidence about the interview and its context, but this was not even suggested. If the Government did not remember whether and in the presence of whom an interview was conducted, which seems to be the case, they could not logically and convincingly argue that, because, allegedly, there were interviews with all migrants, this might also have been the case for the applicants. One cannot base the proof of an alleged specific fact, in this case the alleged interviews of the applicants, on a general hypothesis as to a practice when, firstly, it is vague, uncertain and not particularly credible, and secondly, it might not have been applied in the specific case, for many reasons. A fact must, according to the rules of evidence and principles of logic, be specifically proved and cannot be supported only by generalities and uncertain assumptions. Not only must an interview be shown to have been conducted, but also, and, most importantly, its content must be proved. Thus, even if it were to be assumed that the applicants were asked some questions by the authorities, but the relevant details remain unknown, it could not be said with certainty that what occurred was a personal interview, and, most importantly, it would be impossible to know the answers that were given to the questions asked. Without a record and specific details, this Court would be unable to exercise its supervisory jurisdiction, as it would lack the opportunity to examine whether the procedural obligation of Article 4 of Protocol No. 4 was fulfilled.

By analogy, according to the constant case-law of the Court, when there is no official record of an individual's arrest and ensuing detention, this failure or omission must in itself be considered a most serious shortcoming. More specifically, the absence of a record is considered to entail a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, securing the right to liberty and security. It discloses a most grave violation of that provision and is incompatible with the requirement of lawfulness and with the very purpose of Article 5 (see Fedotov v. Russia, no. 5140/02, § 78, 25 October 2005; Menesheva v. Russia, no. 59261/00, § 87, ECHR 2006-III; and Kurt v. Turkey, 25 May 1998, § 125, Reports of Judgments and Decisions 1998-III). The lack of a proper record of an individual's arrest and detention is thus sufficient for the Court to find that there has been a violation of Article 5 § 1 (see Anguelova v. Bulgaria, no. 38361/97, § 157, ECHR 2002-IV, and Menesheva, cited above, §§ 87–89). If this formality of keeping an official record is indispensable for the guarantee of a non-absolute right, as it is for the right under Article 5 § 1, one may wonder why such a formality should not, all the more so, be indispensable for the guarantee of an absolute procedural right, as is the right secured by Article 4 of Protocol No. 4.

The Court should have adopted, regarding the issue of the personal interview of which no evidence was produced by the Government, the same approach to acceptance of evidence as that which it followed concerning the alleged conditions on the ships on which the applicants were placed. On the latter issue, the Court rightly declined to accept the applicants' allegations, since, as it found, those allegations were ‘not based on any objective reports, merely their own testimony’ (see paragraph 204 of the judgment).

In the present judgment, emphasis is placed on the fact that ‘the applicants did not dispute the Government's submission that ninety-nine social operators, three social workers, three psychologists, and eight interpreters and cultural mediators worked at the CSPA …’ (see paragraph 246). However, this alleged fact was irrelevant for the applicants in relation to their submission that they did not have a personal interview, as one cannot expect them to consider it important, for the purposes of their counter-argument, how many people were working at the CSPA at the material time and what they were doing. By the same logic, for a person who is a victim of a crime, it is immaterial how many policemen are working in the town where it is committed. His or her only concern might be that he or she was not protected by the police and that the police did not catch the perpetrator.

It is important to underline that the Government were not even in a position to specify whether, during the alleged interview, there was an interpreter ‘or’ a cultural mediator actually present (see paragraph 224 of the judgment). Nor did they specify how many of these eight specialists were interpreters and how many were cultural mediators. In any event, there were only eight such specialists, and the reference to any other specialist, like social operators, social workers and psychologists (see paragraph 246 of the judgment), was, with due respect, not only irrelevant, but also misleading, because the allegation of the Government as to who could have been present at the interview was confined only to an interpreter or a cultural mediator. Moreover, at the CSPA, at the relevant time, there were a considerable number of foreign nationals, as is indicated in the judgment (see paragraphs 180 and 182). It is thus possible that the number of interpreters or cultural mediators may not have been sufficient in order to attend to all the needs as required. In other words, the administrative infrastructure needed to properly process so many expulsions in a short period of time was not necessarily adequate. One does not know, after all, how many of these interpreters or cultural workers were working on the date when the personal interviews allegedly took place. Since the burden of proof that a personal interview was actually conducted is on the Government, and, since they could not name the person who conducted the alleged interview or offer the Court any evidence from him or her as to the content of the interview, any such allegation could only be speculative, without having any evidential weight, not even on the standard of the ‘balance of probabilities’. However, I believe that the standard of proof in such cases must be high and specifically ‘beyond reasonable doubt’, since the procedural right guaranteed under Article 4 of Protocol No. 4 is absolute, and the procedural obligation of the respondent State thereunder is mandatory. In other words, a State which expels aliens en masse is presumed to be in violation of Article 4 of Protocol No. 4 unless it can prove, beyond reasonable doubt, that it followed due process regarding every alien in the group, through a procedure involving personal interviews.

The applicants argued that there were no records of their personal interviews, not because they were destroyed by fire, but because there was no personal interview to be recorded. Why should one accept the position of the Government, which despite it being their obligation to conduct a personal interview provided the Court with no evidence at all to that effect, and not accept the position of the three applicants that there were no such personal interviews and that the authorities signally failed to fulfil their procedural obligation under Article 4 of Protocol No. 4?

Not only were there no records available to prove that a personal interview had been conducted, there were also no records available to prove that an opportunity had been given to the applicants to notify the authorities of any reasons why they should remain in Italy or why they should not be returned. As to the opportunity allegedly given to the applicants to raise any claim if they so wished, again, the Government's allegation was general in nature as can be seen from paragraph 225 of the judgment:

Consequently, the majority's stance, accepting as persuasive such a general allegation of the Government, could not but amount to an assumption, as shown in paragraph 247 of the judgment:

The majority, accepting the allegation of the Government, say that ‘the applicants had an opportunity to notify the authorities of any reasons why they should remain in Italy or why they should not be returned’ (paragraph 247 of the judgment). First of all, there was no allegation by the Government that they had kept any record of having informed the applicants about their rights, or evidence that such a record ever existed. But how could the allegation of the Government about informing the applicants be persuasive or valid, when no documentary evidence was produced to prove this. Even assuming that there was no documentary evidence because it was destroyed in the fire, the authorities had a positive obligation to afford the applicants a fresh opportunity to raise any claims they may have had and to make a record accordingly. In the absence of records, one cannot know if the authorities informed the applicants about their rights, and if the applicants reported anything relevant to the authorities. Why should one accept the allegation of the Government that they informed the applicants of the possibility of lodging an asylum application, when the authorities were following the summary procedure provided for by the bilateral agreements to expel the applicants?

In the judgment (paragraph 249) it is stated:

Since, according to the majority, the period during which the applicants stayed in Italy was not insignificant, thus allowing them the time to draw the attention of the national authorities to any claim they had, this period could equally, and even more importantly, have been used by the authorities in order to repeat the alleged personal interviews, if the Government's allegation that the records of the interview had been destroyed in the fire was true. In view of the facts of the case, and despite the vulnerable or difficult situation of the applicants, it is my opinion that the applicants were not afforded by the authorities an opportunity to have a personal interview or to raise any claim or to obtain legal assistance. It is true, moreover, that collective expulsions of aliens without procedural guarantees create among them feelings of uncertainty.

The Court unanimously found that the respondent State had violated Article 5 § 2 of the Convention, which provides that ‘[e]veryone 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’. This finding, I believe, is more consistent with my view, that the authorities showed a similar failure and lack of diligence and caution regarding the issue of personal interviews under Article 4 of Protocol No. 4, than with the stance of the Government, which argued that they had complied with the provisions of both Article 5 § 2 and Article 4 of Protocol No. 4. Why should one expect the authorities to inform the applicants about their rights, when they did not even inform them about the reasons for their arrest? After all, as has been said above, the simplified bilateral agreements between Italy and Tunisia were applied for the return of the applicants, in the absence of any representative of the Italian authorities in the readmission procedure.

With due respect, an argument drawn by the majority from the alleged fact that seventy-two migrants held in the Lampedusa CSPA had expressed their wish to apply for asylum (paragraph 247 of the judgment) is not quite relevant, firstly, because there is no examination in this case of the circumstances of these other migrants, who may or may not have undergone a personal interview, in order to compare them with the circumstances of the applicants, and, secondly, because, as has been said above, there was no record to prove what actually happened or what was said or claimed, if anything. In any event, why should one take into account what happened to those seventy-two migrants, about whom the Court has no information, and not take into account the Chamber's findings that ‘a large number of individuals of the same origin around the time of the events in issue, had been subjected to the same outcome as the applicants', that ‘the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned’ (paragraph 213 of the judgment), and, ultimately, that ‘[t]hose elements sufficed for the Chamber to find that the applicants' expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached …’ (ibid.)?

In conclusion, I believe that it is not proven that the applicants underwent personal interviews for the purposes of Article 4 of Protocol No. 4 and that the Italian authorities had signally failed to fulfil their procedural obligations.

The question arises as to what is the true meaning of the adjective ‘collective’ in Article 4 of Protocol No. 4, which is of central importance for the determination of the notion of ‘collective expulsion’.

In the judgment (paragraph 244), though the question is raised as to whether the expulsion was ‘collective’ in nature, nothing is said, however, about any necessary quantitative requirement for the meaning of the phrase ‘collective expulsion’ under Article 4 of Protocol No. 4. However, in the judgment, it is assumed, without being clearly stated, that the application, had it not been for the other reasons given in the judgment, would not have been dismissed under Article 4 of Protocol No. 4 on the basis that the applicants were only three in number, not meeting any greater numerical threshold under the said provision, as was the view of two of the judges in the Chamber, Judges Sajó and Vučinić, in their joint partly dissenting opinion. According to these two judges, who interpreted Article 4 of Protocol No. 4 in the light of its historical origins (see paragraphs 9 and 18 of their opinion), there had not been a ‘collective expulsion’ in the present case, as the expulsion was not directed at an ‘entire group’, implying a large-scale deportation of aliens.

The adjective ‘collective’ in Article 4 of Protocol No. 4, referring to the phrase ‘expulsion of aliens’, could most logically be indicative of the measure or the procedure for handling the expulsion of aliens as a group, and not of the number of the aliens involved in a group expulsion. Otherwise, adjectives such as ‘massive’ or ‘substantial’ would have been used instead. The case-law of this Court (see references in the judgment, paragraph 237), when referring to the adjective ‘collective’, gives it the meaning of a group (‘as a group’), without any distinction being made between groups according to the number of their members. Since Article 4 of Protocol No. 4 and the case-law of this Court do not distinguish on a numerical basis, neither should one introduce such a distinction, in accordance with the Latin maxim ubi lex non distinguit, nec nos distinguere debemus (7 Coke's Reports, 5).

Support for the view that the adjective ‘collective’ in Article 4 of Protocol No. 4 refers to a ‘measure’ or ‘procedure’, rather than to a quantitative or numerical figure can be derived from the wording of the previous Article of the same Protocol, namely Article 3 § 1, which makes provision for the prohibition of expulsion of nationals. Article 3 § 1 reads as follows:

The key words in Article 3 § 1 supporting the present argument are: the adjectives ‘individual’ and ‘collective’, used disjunctively, and probably as antonyms; the phrase ‘by means of’; and the noun ‘measure’, to which the adjectives ‘individual’ and ‘collective’ refer.

It is clear, therefore, from the above-mentioned analysis that the same adjective, namely ‘collective’, which is used in the two provisions, Article 3 and Article 4 of Protocol No. 4, has or should have the same meaning, thus referring to the ‘measure’ or ‘procedure’ for the handling of expulsions of people as a group. It is a sound rule of construction, which I believe applies also in regard to the Convention's provisions, to give the same meaning to the same words or phrases occurring in different parts of a legal instrument, unless it is otherwise made clear (see F.A.R. Bennion, Bennion on Statutory Interpretation: a Code, fifth edition, London, 2008, pp. 1160 and 1217 and the relevant common law case-law cited therein). In accordance with a systemic interpretation and the principle that the Convention should be interpreted as a whole and its different parts should be understood noscitur a sociis, Articles 3 and 4 of Protocol No. 4 should be read in conjunction and the phrase ‘collective expulsion’ should be interpreted in association with the other terms of Article 3 § 1 in their context and reading Protocol No. 4 as a whole. Such an interpretation is in line with Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT) of 1969, which provides that: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. This provision reflects the rule that the same words should have the same meaning, if the ordinary meaning is to be given to the same terms in a treaty. The Court in Hirsi Jamaa and Others (cited above, §§ 170-71), dealing with a different issue under Article 4 of Protocol No. 4 clearly referred to the above-mentioned principles of interpretation under the VCLT:

It is also apparent from the travaux préparatoires in respect of Protocol No. 4, as a supplementary means of interpretation under Article 32 VCLT, that the phrase ‘collective expulsion’ is used as having the same meaning in regard to both nationals and aliens. In paragraph 32 of its report, the Committee of Experts on Human Rights to the Committee of Ministers (see Collected Edition of the ‘Travaux Préparatoires’ of Protocol No. 4, Strasbourg, 1976, p. 669), states the following:

Also, in paragraph 33 of the same report, the Committee of Experts states:

In addition, the Court in Hirsi Jamaa and Others, cited above, § 174, read Articles 3 and 4 of Protocol No. 4 in conjunction, regarding the meaning of ‘expulsion’ in the two Articles, thus further supporting the proposed common meaning of the adjective ‘collective’:

In Theory and Practice of the European Convention on Human Rights (P. Van Dijk, F. Van Hoof, A. Van Rijn and L. Zwaak (eds), fourth edition, Antwerp-Oxford, 2006), Chapter 23 on ‘Prohibition of Collective Expulsion of Aliens (Article 4 of Protocol No. 4)’ (revised by J. Schokkenbroek, p. 955), it is elegantly explained that the decisive criterion for the application of Article 4 of Protocol No. 4 is the procedure leading to the expulsion and neither the number of which the group consists nor the link knitting together its members:

Article 4 of Protocol No. 4 contains a procedural guarantee of human dignity which is inherent in the Convention. What the Court profoundly said in Bouyid (cited above, § 81) regarding the prohibition of inhuman or degrading treatment or punishment, that it is ‘[i]ndeed … a value of civilisation closely bound up with respect for human dignity’, applies also, in my view, regarding the prohibition of collective expulsion, in the sense that the lack of the procedural guarantee of a personal interview is inconsistent with the Convention's fundamental values of a democratic society. It must be emphasised that the rights under Articles 3 and 4 of Protocol No. 4 are both absolute rights, which apply without exception. As rightly put by Professor Feldman, human dignity ‘may need to be taken into account … when interpreting the Convention rights themselves …’ (David Feldman, ‘Human Dignity as a Legal Value’ — part II, Public Law, Spring 2000, p. 75). Therefore it would not have been the intention of the drafters of the Convention to limit the procedural guarantee of Article 4 of Protocol No. 4, underpinned as it is by human dignity, only to cases where the expulsion of people is numerically massive, and not also in the event of an arbitrary expulsion of smaller groups of aliens, not treating such people as a group under Article 4 of Protocol No. 4 and without requiring any reasonable and objective examination of the particular case of each alien in a group on a case-by-case basis involving a personal interview. The procedural guarantee of Article 4 of Protocol No. 4 is based on the idea that human herding and collective and indiscriminate removal diminish individuality and offend against personality, autonomy and human dignity. Thus, ultimately, it is human dignity that Article 4 of Protocol No. 4 seeks to protect. Again, it would be contrary to the idea of human nature and the purpose of the Convention for the Court to decide the issue in question on the basis of arithmetical considerations.

Even if, for the sake of argument, one were to be faced with two equally valid or arguable interpretations of Article 4 of Protocol No. 4, one would prefer that which favours the essence of the right (in dubio in favorem pro libertate) and, at the same time, does not limit the ambit of the said provision ratione personae, instead of the other, which would exclude from the protection of Article 4 small groups of aliens, like the group of applicants in the present case.

In conclusion, it is immaterial for the purposes of Article 4 of Protocol No. 4 that the applicants were only three in number. Besides, they were expelled back to their country as a group, merely on the basis of their nationality, something which the said provision prohibits.

Article 4 of Protocol No. 4 does not distinguish between groups of aliens according to whether they lawfully or unlawfully entered the territory of a State. Neither does it distinguish between different kinds of groups who unlawfully entered the territory of a State. So one ought not to make any such distinction, observing the above-mentioned principle ubi lex non distinguit, nec nos distinguere debemus. Otherwise the interpretation would be restrictive and contrary to the object of the provision.

The Committee of Experts, which finalised the draft of Article 4 of Protocol No. 4, made it absolutely clear (see ‘Travaux Préparatoires’ of Protocol No. 4, cited above, p. 505, § 34), that the prohibition contained in this Article applies to aliens irrespective of whether or not they reside or are domiciled in the territory of the State they have entered:

Apart from this clear explanation by the Committee of Experts, the evolution of the draft of Article 4 of Protocol No. 4 is interesting and supports the point at issue, namely that this Article was not confined only to aliens lawfully resident in the territory of a State. The original draft of the Article had actually, in its first two paragraphs, contained wording similar to that now to be found in Article 1 §§ 1 and 2 of Protocol No. 7, which deals expressly with individual expulsion of aliens lawfully resident in the territory of a State. But draft Article 4 of Protocol No. 4, in its third and last paragraph provided that: ‘Collective expulsion is prohibited’ (ibid., pp. 447 and 454). This last paragraph, unlike the first two, was intended to apply irrespective of the nationality or residence of the persons expelled (ibid., pp. 481 and 505). The Committee of Experts ultimately decided not to include in Article 4 of Protocol No. 4 any provision concerning the individual expulsion of aliens lawfully residing in the territory of the State and it thus deleted the first two paragraphs, leaving only the expulsion of a group, but limiting it to aliens only, irrespective, of course, of the lawfulness of their residence (ibid., pp. 490, 505 and 507). The Committee excluded the collective expulsion of nationals from this provision, as they were to be covered by Article 3 of Protocol No. 4. It was not until Protocol No. 7 came into force, about twenty-one years after the entry into force of Protocol No. 4, that the individual expulsion of aliens lawfully resident in the territory of a State was finally regulated. However, as regards individual expulsions of aliens who are unlawfully within the territory of a State, there is no provision in the Convention or its Protocols specifically regulating such matters, and this omission may or may not have been intentional.

It is true that where the drafters of the Convention intended to deal with the expulsion of an alien ‘lawfully resident in the territory of a State’, or, with restrictions on the freedom of movement of ‘everyone lawfully within the territory of a State’, they used the adverb ‘lawfully’, as they did in Article 1 of Protocol No. 7 and Article 2 § 1 of Protocol No. 4, respectively. It follows that in Article 4 of Protocol No. 4, where the drafters did not use the adverb ‘lawfully’ or another similar term, the meaning is intentionally not limited to lawful residents.

Thus, the procedural guarantee of Article 4 of Protocol No. 4 applies to all aliens, including stateless persons, no matter whether or not they have entered the territory of a State lawfully or have remained lawful entrants, although entry into the physical territory of the State, or residence in that territory, may not be required (see Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights, third edition, Oxford, 2014, at p. 961 and note 88).

The said provision, however, applies mainly to the case of expulsion of persons who are not lawfully resident in the territory of a State, for example, groups of would-be or failed asylum seekers, of Roma or gypsies seeking a camp, of migrant workers seeking employment, of economic migrants, etc. This can be understood in the light of another protocol to the Convention, namely Protocol No. 7, which, although it does not concern collective expulsion, deals specifically and in detail (Article 1 thereof) with procedural safeguards relating to the individual expulsion of aliens lawfully resident in the territory of a State. Unlike, Article 4 of Protocol No. 4, which applies irrespective of the lawfulness of the residence of the applicants, Article 1 of Protocol No. 7 applies only to lawful residents in a State. Accordingly, in Sulejmanovic and Sultanovic v. Italy, no. 57574/00, 14 March 2002, the complaint under Article 1 of Protocol No. 7 was rejected on the ground that the applicants were not considered lawfully resident in Italy, but the complaint under Article 4 of Protocol No. 4 was declared admissible.

The Convention is a living instrument and its purpose is to provide its guarantees in response to the changing needs of modern society, considering also that the movement of people from one country to another is easier nowadays than in the past, and the causes and reasons for such movements may differ in kind and in time. It is therefore immaterial if the applicants in the present case were economic migrants (if that is true, since no personal interview was conducted at the material time to ascertain the applicants' true motives).

The question arises, whether, apart from the conduct of a personal interview which, in my view, is mandatory in all cases, the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in determining whether Article 4 of Protocol No. 4 has been complied with.

The answer should, in my view, be in the affirmative. The failure to conduct a personal interview, which should be mandatory, leads to a violation of the above provision per se. But, the conduct of a personal interview is the minimum procedural guarantee required by Article 4 of Protocol No. 4. This guarantee is to be secured by all High Contracting Parties to everyone within their jurisdiction, as provided by Article 1 of the Convention. If a State, despite the conduct of personal interviews, nevertheless ignores the personal circumstances of each alien forming a group and proceeds with the simultaneous expulsions of all members of the same group merely on the basis of their nationality, religion or membership of a group, without considering the individual circumstances of each alien, it still violates Article 4 of Protocol No. 4, because it goes against the aim of the said provision. One should not confuse the prohibition of collective expulsion in Article 4 of Protocol No. 4 on a basis other than the personal circumstances of each of the aliens involved, which is a procedural guarantee and at the same the aim of the provision, with any arguable substantive right an alien may have to remain in a territory. Thus the circumstances surrounding the implementation of an expulsion decision, and the decision of implementation itself, play a role in the application of Article 4 of Protocol No. 4 and must be considered as an additional requirement of its application.

This additional requirement, based on the very aim of Article 4 of Protocol No. 4, was enunciated in Čonka v. Belgium (no. 51564/99, § 63, ECHR 2002-I), the facts of which, together with this requirement, are appropriately discussed in the following passage from Theory and Practice of the European Convention on Human Rights (cited above, p. 956):

The interpretation of a legal provision according to its aim is particularly important in a convention such as the European Convention on Human Rights and the Protocols thereto, which are aimed at protecting human rights in a practical and effective manner. Because of this, such interpretation, like that of Article 4 of Protocol No. 4, should go to the core or the heart of the right requiring protection, and it must therefore be broad and effective in terms of its above-mentioned object and purpose.

Collective expulsion of aliens merely on the basis of their nationality, as was the case in the present application, also offends against the principle of democracy, which is one of the fundamental principles of the Convention, specifically emphasised in its preamble. This principle does not allow or tolerate discrimination against aliens on the basis of their nationality. As has been said above, the prohibition of Article 4 of Protocol No. 4 is not only a prohibition of arbitrariness but also a prohibition of discrimination, in other words a prohibition of expulsion of aliens merely because they belong to a certain group. Collective expulsion can also be discriminatory because of its disproportionate character.

In conclusion, the guarantees of Article 4 of Protocol No. 4 are, firstly, the conduct of a personal interview, and secondly, protection from an expulsion decision, and its implementation, based merely on the ground of membership of aliens in a group, disregarding their personal circumstances; a two-fold test should therefore be applied.

In my view, neither of these guarantees was satisfied in the present case, since no interview was conducted and the expulsion of the applicants was carried out merely on the basis of their nationality, pursuant to the bilateral agreements between Italy and Tunisia.

Accordingly, there has, in my view, been a violation of Article 4 of Protocol No. 4.

I agree with the Chamber judgment (§ 172) that there has also been a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4.

It is clearly stated in the refusal-of-entry orders that: ‘The lodging of an appeal does not suspend the enforcement (efficacia) of the present order’ (see paragraph 19 of the judgment). Consequently, the lodging of an appeal could not meet the requirement of Article 13 of the Convention for suspensive effect, as established by the case-law cited in the Chamber judgment (Chamber judgment, § 172).

In addition, according to the case-law, ‘the requirement under Article 13 that execution of the impugned measure be stayed cannot be regarded as a subsidiary aspect’ (ibid.).

With all due respect to the majority, I disagree that the lack of suspensive effect of a removal decision, pending an appeal, in a collective expulsion case, does not, in itself, constitute a violation of Article 13, and that the criterion of suspensive effect of a removal order may depend on whether the applicants allege that there is a real risk of a violation of their rights guaranteed by Articles 2 and 3 in the destination country (see paragraphs 277 and 281 of the judgment). This, ultimately, would mean that the suspensive effect of a removal order will be dependent on the discretion of the immigration authorities, to assess, in advance and before an appeal decision is taken, whether an alien has an ‘arguable’ complaint that he or she faces a violation of Articles 2 or 3 of the Convention. However, even assuming that the above approach was correct, and the immigration authorities were convinced that there was a real risk of violations of rights guaranteed by Articles 2 and 3, the refusal-of-entry orders, based on the bilateral agreements between Italy and Tunisia, would probably remain unaffected, still prohibiting suspension of enforcement in the case of the lodging of an appeal.

The approach I would follow, which I believe is the correct one, is reinforced by the following obiter dictum of the Court in De Souza Ribeiro v. France ([GC], no. 22689/07, § 82, ECHR 2012):

The above passage was an obiter dictum and not the ratio decidendi of the case, because the issue in relation to which it was stated was an issue of compliance with Article 13 of the Convention taken in conjunction with Article 8 of the Convention and not an issue of compliance of Article 13 taken in conjunction with Article 4 of Protocol No. 4. Still, like any other obiter dictum of the Grand Chamber, this one is of highly persuasive authority. The majority decided that this dictum‘cannot be read in isolation’, but that ‘it must be understood in the light of the paragraph as a whole’, which deals with obligations arising from Articles 2 and 3 of the Convention. They also emphasised that the two cases referred to in the above dictum concerned Article 3 issues and not situations where there was any allegation by the applicants that their expulsion was collective in nature.

With due respect, I do not agree with the above reasoning. Though it is correct that the said dictum should not be read in isolation, it cannot, however, be understood only in the light of the paragraph (De Souza Ribeiro, § 82) where it is to be found, as a whole, but also in the light of the section where the paragraph is to be found, as a whole. This section is entitled: ‘Compliance with Article 13 of the Convention taken in conjunction with Article 8’. Accordingly, what is said in paragraph 82 in relation to compliance with Article 13 taken in conjunction with Articles 2 and 3 of the Convention and Article 4 of Protocol No. 4 is said obiter, because the relevant issue there was compliance with Article 13 taken together with Article 8. The meaning of paragraph 82, as I understand it, is that Article 13 of the Convention can apply in conjunction with

This is exactly the meaning of the word ‘Lastly’ in the said passage which leaves no doubt on the matter. In Hirsi Jamaa and Others (cited above, § 207) it is clear that, regarding compliance with Article 13 taken in conjunction with Article 3 and Article 4 of Protocol No. 4, the Court does not subject an issue of Article 4 of Protocol No. 4 to an obligation under Article 3, but deals with them separately:

Moreover, the other case to which the dictum in question refers, namely Čonka (cited above), does not seem to support the view of the majority, in the light, inter alia, of the wording of paragraph 82 thereof (emphasis added):

I believe that, again, like the procedural obligation under Article 4 of Protocol No. 4, the said obligation under Article 13, when it applies in relation to Article 4 of Protocol No. 4, is mandatory and not qualified by any exception, this being the only safeguard against arbitrariness. Otherwise, it would not serve to ensure the mandatory nature of the procedural obligation of Article 4 of Protocol No. 4, as I believe it should do, or the principle of effectiveness of the Convention provisions, if Article 13 were not to have an automatic suspensive effect in respect of the enforcement of a removal order, taken under Article 4 of Protocol No. 4.

Finally, the procedural right guaranteed in Article 4 of Protocol No. 4 would lose its requisite protection, if under Article 13 a removal order did not have an automatic suspensive effect where an appeal is lodged.

My findings set out above, that there have been violations of Article 4 of Protocol No. 4 and of Article 13 of the Convention taken together with the former Article, would have led to an increase in the amount of the award in respect of non-pecuniary damage, the determination of which, however, could only be theoretical, since I am in the minority.