ECtHR – Richmond Yaw and others v. Italy, Application nos. 3342/11, 3391/11, 3408/11 and 3447/11, 6 October 2016

Facts:

The applicants fled Ghana for conflictual religious reasons. They arrived in Italy in June 2008. Deportation orders were made in November 2008. Following this, the applicants were detained in a temporary centre to process their identification. The chief of police then asked for their detention to be prolonged by 30 days. In December, the applicants introduced an official application for international protection. Following this, the application for their prolonged detention was granted without notice being given to the applicants or their counsel. This prolonged detention period would last from 14 December 2008 until 23 January 2009. The applicants were released on 14 January due to their application for international protection. The order for deportation was cancelled in June. The original decision to detain them was then declared void due to lack of a hearing and participation of the applicants and their legal counsel. In February 2011, the applicants lodged four civil actions against the State for harm they had been subject to as a result of their prior detention. The appeals challenging the Home Office were dismissed and the appeals against the Ministry of Justice were found to be inadmissible.

Decision & reasoning:

The Court joined all four requests together due to similarity.

In terms of admissibility, the applicants successfully argued that they had exhausted domestic remedies. This was justified by the Court in that the burden of proof is on the Government to prove that remedies were available both in theory and in practice in the domestic Courts. The Court noted that the applicants have made reference to several cases with similar practices of dismissing appeals, whereas the Government has not provided any case-law that supports its claim that domestic remedies are readily available in circumstances similar to those of the applicants. The appeal was therefore admissible. With regard to the applicants’ victim status, the Court emphasises that a person who has obtained an adequate remedy at the domestic level cannot be considered a victim within the meaning of Article 34 of the Convention. The Court also recognises that in order for an applicant to be deprived of his/her victim status, the State must have recognised and compensated for the violation. On these facts, the Court considers that the Court of Appeal’s recognition of the irregularity of the extension of the detention does not constitute sufficient compensation as the applicants were not allowed to obtain an appropriate remedy. Therefore, the applicants are still able to claim to be victims of a violation of Article 5(1)(f) of the Convention.

Article 5 ECHR is recognised as a fundamental human right which protects individuals against arbitrary behaviour of the State with regards to freedom. Article 5(1) provides a list of the exceptions in which a person may be deprived of this freedom. All arrests and detentions must have a legal basis in national law. This must be clearly defined and must fulfil the criteria for ‘legality’ outlined by the ECHR. A distinction must be made between manifestly invalid detention and those detentions which are prima facie valid until the moment they are cancelled. A detention will be considered invalid if it consists of a serious irregularity. In this case, the failure to summon the persons concerned and their lawyer and to schedule a hearing amounts to a “serious and manifest irregularity” within the meaning of its case-law. Thus, the extension of the applicants’ detention from 17 December 2008 to 14 January 2009 with a view to their expulsion was not in accordance with the legal channels and constitutes a violation of Article 5(1)(f) ECHR.

Article 5(4) can only be applicable to people detained and cannot be invoked by a person who has been liberated to refer to potential illegality of prior detention. It is noted that nothing prevented the applicants from invoking Article 5(4) at the time when they were detained. This is therefore inapplicable here and there is no violation.

Article 5(5) governs whether the applicants have a right to compensation owing to their wrongful detention established in paras 1-4. It requires that one of the other paras of Article 5 has been violated in order for there to be a claim. In this case, Article 5(1) has been violated and so there is potential for compensation for the applicants. The Court supposes that the applicants had no means of obtaining compensation for the violation of Article 5(1)(f). There has been a violation here of Article 5(5).

Outcome:

The Court finds a violation of Articles 5(1)(f) and 5(5).

Observations/comments:

The International Commission of Jurists intervened as Third-Party Interveners in this case. The intervention centred on a report issued by ICJ in 2014 highlighting that undocumented migrants arriving to Italy are automatically notified of an expulsion decision and placed in detention centres. The report indicates that placement in a detention centre may be extended for up to eight months if it is not possible to carry out the expulsion due to a lack of cooperation from the individual or difficulties in the identification procedure. The ICJ notes in its intervention that detention imposed under the second part of 5(1)(f) would only be justified if the national authorities are diligently seeking a real possibility of expulsion at all stages of the person's detention.

This case summary was written by Ashley E. Mount.

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