28.08.18 |

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

In these days, the world saw unfolding before its eyes the absurd (yet not isolated) and Kafkaesque situation of an Italian Government trying to prevent a boat of the Italian coastguard to board an Italian harbor.

What is worse is that the ship of the Italian coastguard was carrying 177 people on board rescued in the Mediterranean Sea.

The boat in question is called “Ubaldo Diciotti” and was anchored at the port of Catania (Sicily), but the 177 persons on board could not get to land for five days, blocked by order of the Minister of the Interior, Matto Salvini. They were finally allowed to disembark in the night between Saturday 25 and Sunday 26 August. Matteo Salvini had earlier threatened that he would not let anyone land until he got any agreement from “the EU” about their relocation in other countries.

Setting aside the many questions with regard to the duties of rescue and the current EU laws and political implications surrounding migration, this case highlights what would appear to be a set of violations of the right to liberty of the persons aboard.

As correctly identified by Italy’s National Prevention Mechanism, the 177 people aboard were “in a condition of de facto deprivation of liberty” and this may amount to violations of articles 5 of the European Convention on Human Rights, and 12 of the Italian Constitution, i.e. the right to liberty, enshrined as well in article 9 of the International Covenant on Civil and Political Rights.

Indeed, it is established, under the international law of the sea and under international human rights law, that when a person is on a boat flying the flag of one State, it is under such State’s jurisdiction. And of course when that boat is a boat of the State’s coastguard they are under the effective control of the State, which in itself is a basis for juridiction. In the landmark case Hirsi Jamaa and others v Italy, the European Court of Human Rights ruled that:

… by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principleof international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State …. Where there is control over another, this is de jurecontrol exercised by the State in question over the individuals concerned. The Court observes, furthermore, that the above-mentioned principle is enshrined in domestic law in Article 4 of the Italian Navigation Code and is not disputed by the Government … . It concludes that the instant case does indeed constitute a case of extraterritorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention.

The 177 people aboard the Diciotti were therefore already in Italy for all purposes of international and national law. Any action aimed at preventing their disembarkment was therefore pointless, from a legal point of view, if aimed at preventing them from reaching Italy, but effective to influence public perceptions.

The 177 people were already entitled to access an asylum procedure in Italy as well as to be ensured the enjoyment of their human rights by the Italian Government.

Because the passengers were already under Italy’s jurisdiction, the Italian Government must respect, protect and fulfil their human rights, including the right to liberty.

This entails that no one may be deprived of his or her liberty save under certain circumstances “in accordance with a procedure prescribed by law” (article 5.1 ECHR, article 9.1. ICCPR) and that, even in such cases, they should “be informed promptly, in a language [they] understand, of the reasons of (their) arrest and of any charges against [them]” (article 5.2 ECHR, article 9.2 ICCPR) and are entitled to challenge the lawfulness of their deprivation of liberty before before a court that must decide speedily about it (article 5.4 ECHR, article 9.4 ICCPR).

The first question to answer is whether preventing 177 people aboard an Italian coastguard boat from disembarking qualifies as a deprivation of liberty.

Under international human rights law, a deprivation of liberty is not defined with reference to the classification imposed by national law, but rather takes into account the reality of the restrictions imposed on the individual concerned. As the European Court of Human Rights pointed out in 1980 in the case of Guzzardi v Italy,

… in proclaiming the “right to liberty”, paragraph 1 of Article 5 … is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. … the paragraph is not concerned with mere restrictions on liberty of movement … . In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 …, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … . The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 … depends.

There is little doubt that, when 177 people are confined on a boat and cannot disembark (for already two days if we count only the time spent at the docks of Catania) for order of the authorities of a country, the intensity of the restriction of liberty is such as to qualify as deprivation of liberty, as correctly identified by the Italian NPM.

In this case, there is one important element to be recalled: any deprivation of liberty must have a legal basis in national (or international if directly applicable) law that must be clear, precise and foreseeable, and ordered in accordance with a procedure established by law. As held by the European Court of Human Rights in the similar case of Medvedyev and others v France:

.. where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail … .

Furthermore, even if a lawful basis were to be established under domestic law, detention could still be arbitrary under article 9 ICCPR. The UN Human Rights Committee has indeed highlighted

An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. (General Comment no. 35, para. 12)

With all the contentiousness that have surrounded the case of the “Diciotti” as known in Italy and internationally, the Government has yet to clarify on what legal grounds the detention has been ordered, nor has it produced a detention order, that in Italy can be issued only by judicial authorities according to article 13 of the Constitution. News reports say that a public prosecutor in Agrigento has started an investigation on unlawful deprivation of liberty.

It seems quite clear that one of the more basic guarantees of human rights and of the rule of law that no one may be deprived of his or her liberty arbitrarily, has been bypassed in this case without even the stroke of a pen. And, what is even more Kafkaesque, this has been done in order to avoid the disembarkment onto Italian territory of 177 people who are already under Italian jurisdiction.

What is certain is that this cruel set of actions is once more setting Italy outside of the boundaries of international law and the rule of law with no real practical benefits apart from a storm of media attention.

Now that everyone has been disembarked, the case seems to be over in the news. However, this is certainly not the end of the story, from a legal point of view, before Italian, and, possibly, international courts. And sadly, not the last of these cases.