Collective Expulsion and the Khlaifia Case: Two Steps Forward, One Step Back

When the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Khlaifia and Others v. Italy yesterday, many may have felt considerable disappointment. I for one did. What had started as a next step in the development of the case-law on the prohibition of collective expulsion (Art. 4 Prot. 4 ECHR) in September 2015, has now taken a somewhat opposite turn.

The Grand Chamber judgment follows a judgment of the Second Section of the ECtHR which had caused some heated debate, in particular regarding the Court’s finding that there had been a violation of Art. 4 of Protocol No. 4. The majority of Judges then stated that “a mere introduction of an identification procedure is not sufficient in itself to rule out the existence of a collective expulsion”. Furthermore, the fact that the Italian authorities did not inquire about the specific situation of each applicant nor produce evidence of any individual interviews had contributed to the Court’s assessment that the expulsion was of a collective nature. However, two markedly dissenting opinions on this question were raised. As argued by the two dissenting Judges Sajó and Vucinic, the Court’s definition of the concept of collective expulsion had been too wide and was as such not in line with the reasoning in the four preceding cases in which the Court had found a violation of Art. 4 Protocol No. 4. In their opinion, an expulsion collective in nature must either relate to a group of individuals who share some identity characteristics, for instance ethnic origin or religion, or involve a group of individuals who had not been individually identified by the competent authorities.

The Khlaifia case concerns three Tunisian nationals who attempted to cross the Mediterranean Sea by boat, were intercepted by the Italian coastguard and escorted to the Lampedusa shore in September 2011 ...

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