Italy’s policy of sending rescued migrants back to Libya has been slammed by the European Court of Human Rights in a land-mark judgement that confirmed concerns raised by humanitarian organisations.

The Strasbourg Court yesterday ruled that Italy broke the human rights of Somali and Eritrean nationals rescued on the high seas in 2009 when they were immediately taken back to Libya as part of a controversial bilateral agreement.

Italy’s push-back policy, as the agreement came to be known, was criticised by human rights organisations at the time but was defended by the political class, including Home Affairs Minister Carmelo Mifsud Bonnici, PL leader Joseph Muscat and Nationalist MEP Simon Busuttil.

Italy only suspended the agreement when unrest broke out in Libya last year. The move had stemmed the flow of migrants from Libya, who made the dangerous sea crossing to Italy and Malta.

In 2009, migration was a political hot potato as the number of migrants who landed in Italy and Malta increased dramatically in the first six months.

While recognising the pressure caused by an increased influx of migrants, the Court ruled that Italy broke the human rights of the 11 Somali and 13 Eritrean nationals who sought redress at Europe’s highest human rights court.

The 17-judge Grand Chamber of the Court, which included Chief Justice Emeritus Vincent De Gaetano, unanimously found that Italy breached article 3 of the European Convention on Human Rights that prohibits “inhuman or degrading treatment” when it sent the migrants back to Libya.

Doing so exposed the migrants to the risk of ill-treatment in Libya and the serious threat of being sent back to their countries of origin – Somalia and Eritrea – where they also risked being treated badly.

Italy was also found guilty of collective expulsion of migrants, which is prohibited by the European Convention and of denying migrants the right to an effective remedy.

The Court ordered Italy to pay each applicant €15,000 by way of compensation.

According to information submitted to the Court by the applicants’ representatives, two of the immigrants had died in unknown circumstances and 14 had been granted refugee status by the Tripoli office of UNHCR between June and October 2009.

Contact with most of the applicants was lost because of the Libyan revolution but four are living in Malta, Benin and Switzerland while one is in a refugee camp in Tunisia.

Reacting to the outcome of the case, the UNHCR, the UN’s refugee agency, said the ruling provided essential guidance to European states in their border control and interception practices.

The refugee agency had intervened in the case, highlighting the obligation of states not to forcibly return people to countries where they face persecution or serious harm. This is known as the “non-refoulement principle”.

Italy argued that Libya was a safe destination for migrants and the country complied with international commitments as regards asylum and the protection of refugees.

However, the Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights did not in themselves ensure adequate protection against the risk of ill-treatment.

Various non-governmental agencies and human rights groups had reported ill-treatment of migrants in Libya.

This was later confirmed when the Gaddafi regime was forcibly removed last year.

Christopher Hein, a director of the Italian Council for Refugees, a non-governmental organisation, augured that the present administration in Italy would keep this judgement in mind when renegotiating the cooperation agreement with Libya’s transitional government.

“The rights of refugees cannot be negotiated,” he said.

The migrant push-back case

The 11 Somali and 13 Eritrean nationals were part of a group of about 200 people who left Libya in 2009 on board three boats. On May 6, 2009, when the boats were 35 nautical miles south of Lampedusa in Malta’s search and rescue area, they were intercepted by Italian coastguard vessels.

In line with an agreement Italy had reached with Libya, the migrants were immediately transferred onto a military ship and returned to Tripoli.

The migrants said the Italian authorities did not check their identity or tell them where they were being taken. In Tripoli, after a 10-hour journey, the migrants were transferred to the Libyan authorities.

In 2009, Italy conducted nine operations on the high seas to intercept migrant boats and return the people on board to Libya without the chance to apply for asylum.

The agreement with Libya was suspended last year in the wake of armed conflict that eventually overthrew the Gaddafi regime.

In the case lodged on May 26, 2009, the migrants claimed their right to be protected from inhuman and degrading treatment was violated. They sought re­dress for being subjected to collective deportation and accused the Italian authorities of not providing an effective remedy in breach of the European Convention of Human Rights.

What they said in 2009

Home Affairs Minister Carmelo Mifsud Bonnici

“The arrangement between Libya and Italy has the potential to eradicate what is an illegal trade involving human beings that too often leads to loss of life on the high seas. Inherently, the government can only support any action that prevents potential loss of life.”

Reported in The Times, May 8

Labour leader Joseph Muscat

“I hope that this policy will continue after June 6. Solidarity from other EU countries on the issue of migration has been lacking and so I agree that immigrants should be sent back to Libya immediately.”

Reported in The Times, May 12

Nationalist MEP Simon Busuttil

“Although it was understandable to ask questions on Italy’s policy of returning migrants to Libya, it is indisputable that, as a result of these returns, the number of arrivals this year was down on last year and so were the number of tragic deaths”

Reported in The Times, September 17

ksansone@timesofmalta.com

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