I have watched a portion of the web cast of yesterday’s oral submissions before the ECtHR Grand Chamber in Hirsi and others v Italy, Requête no 27765/09. Here is a summary of the oral submissions made on behalf of the Respondent Government of Italy by Mrs. Silvia Coppari, Co-Agent, and Mr. Giuseppe Albenzio, Adviser. NB while I think my notes are accurate, do not rely on them for exact quotes of any of the oral remarks.
Oral Submission by Mrs. Silvia Coppari, Co-Agent, Government of Italy
Introductory Remarks Critical of Applicants:
Coppari began her oral submission by saying that the Italian government did not intend to enter into the controversy raised by Applicants in their written submissions where the Italian government and its representatives were insulted and provoked by the Applicants’ statements that the arguments relied upon by the Italian government were purely formal or quite absurd and tendentious. Coppari described the Applicants’ written submission as a political and ideological manifesto against the government and its policy.
Questioning Why Italy Was Singled Out:
Coppari said that the issues raised by the Applicants related to European public policy in general and therefore all EU Member States should be involved in the case. Italy’s policies and actions were adopted and carried out in a manner consistent with the guidelines, objectives, and guidance set by the EU to curb illegal migration.
Reminding Court that Case is Limited to the Events of 6 May 2009 and is Not a Challenge to Italy’s Migration Policies:
Coppari emphasised that the Application was lodged only with respect to the events that took place on 6 May 2009 when the push-back operation involving the Applicants occurred and that the Application does not deal with the public policy or practices of the Government.
Admissibility Challenge No. 1:
Coppari recalled that the allegations lacked specific supporting evidence and noted that the Applicants themselves have not testified in any domestic proceedings and have not otherwise personally participated in the case. Coppari expressed misgivings about the validity and authenticity of the authorisations given to the Applicants’ legal representatives. Coppari said there was no certainty as to the identity of the Applicants and therefore no likelihood of individually assigning a particular alleged offence to them or a possible violation of their rights under Art. 34 of the Convention.
Admissibility Challenge No. 2:
Coppari made a second inadmissibility objection due to the failure of the Applicants to lodge an appeal with the Italian courts in line with Art. 13. The pursuit of such domestic remedies would have given the Italian authorities the opportunity to check whether those who were rescuing illegal migrants on the high seas were possibly liable for any rights violations. Coppari emphasised that at present there are criminal proceedings underway at the domestic level in cases very similar to the instant case and that these cases will determine whether there was compliance with national and international standards and whether there was effective access to procedures for international protection for unidentified migrants intercepted at high seas and transported to Italian vessels. The existence of these ongoing domestic cases proves that domestic remedies do exist which were not pursued by the Applicants.
The Events of 6 May 2009:
Coppari said that the operations carried out on 6 May 2009 to intercept 3 makeshift migrant vessels were done to protect the migrants from danger and to control the flows of illegal migration towards Europe. The migrant vessels were in distress on high seas in the Maltese SAR zone. The migrants were rescued and returned to Libya on board Italian military vessels. There is no evidence suggesting that requests for international protection were made to Italian authorities. The migrants were in fact welcomed upon arrival in Libya. The returns did not breach any basic rights of the Applicants.
Prohibition Against Collective Expulsions Does Not Apply Extraterritorially:
Coppari said that prohibition of collective expulsions provided by Art. 4 of Protocol 4 is not applicable to the case. Coppari said that the use of the word “expulsion” is an obstacle to its application in the case of extraterritorial exercise of state jurisdiction. Not only is it an apparent obstacle, it is in fact a logical obstacle which cannot be circumvented because an “expulsion” can only happen to people who are already on national territory or who have illegally crossed the border. The transfer to a vessel on the high seas cannot be equated with entry upon national territory or permanent residence on national territory.
Giuseppe Albenzio, Adviser, Government of Italy
Introductory Remarks – Italy’s Policies Consistent with EU Principles:
Italy has acted in respect of principles handed down by the EU. The European pact on immigration and asylum provides for limits on migratory flows, the need to control illegal immigration by ensuring that illegal immigrants are returned to the country of origin or to a country of transit, the need to make border controls more effective, and to make partnerships with countries of origin or transit.
At the Time of the Events in Question, Libya Was a Country with an Adequate Protection System in Place:
Italy’s bi-lateral agreements with Libya at the time they were implemented recalled the general principles of international law and of human rights and therefore in face of these principles recognised in the agreements, the misgivings regarding Libya’s non-subscription to the UN Refugee Convention should not exist and are not justified especially since Libya has signed the similar African Union Convention for refugees. It should also be underlined that at the time of the events in question, the UNHCR and IOM were both active in Tripoli and the operations that were carried out in the months after the bilateral treaty was implemented should be seen in this context.
After the first phase of the implementation of the bi-lateral treaty when Italian authorities took note of the fact that Libyan authorities had ordered the UNHCR office in Tripoli to close, which in turn made it difficult to guarantee the protection of fundamental rights on its territory, Italy’s methods for rescuing migrants on the high seas were modified and people who were on vessels coming from Libya would be accompanied to Italian soil after rescue.
The web cast of the hearing is available here. (I was able to view this with IE but not with Firefox.)