THE NOTION OF “CONTRACTING PARTIES’ JURISDICTION” UNDER ARTICLE 1 OF THE ECHR: SOME MARGINAL REMARKS ON NIGRO’S PAPER

Abstract

On 15 December 2016 the Grand Chamber of the European Court of Human Rights adopted the judgment in Khlaifia and Others v. Italy. The case was referred to the Grand Chamber by Italy following the judgment released by the Second Section of the Court on 1 September 2015. The case concerns the detention and the ensuing repatriation to Tunisia of three irregular immigrants who arrived in Italy in 2011 during the “Arab Spring”. The judgment of the Grand Chamber confirms the Chamber’s judgment in relation to some important aspects, finding a violation of Article 5, paragraphs (1)(2) and (4), and of Article 13 in conjunction with Article 3, and recognising no violation of Article 3 as to the conditions in which the applicants were held on the ships Vincent and Audace in the harbour of Palermo. On the contrary, the Grand Chamber distances itself from the Chamber’s assessment concerning the respect of Article 3 in relation to the conditions in which the applicants were held in the Centro di soccorso e prima accoglienza (Centre for Rescue and Initial Reception) on Lampedusa, of Article 4 Protocol No. 4 and of Article 13 ECHR taken together with Article 4 Protocol No. 4 ECHR, as the majority in the Chamber found the violation of these articles. This note analyses the differences between the two judgments, emphasising possible implications for the protection of the rights of migrants in Europe. In this context, the European Union “hotspot approach” and the Italian “Decreto Minniti” are also considered.