\nNoot bij: EHRM 15 december 2016, EHRC, 2017, 65 (Khlaifia and others v. Italy)

1 of the Convention1.The parties' submissions (a) The Government 58.The Government argued in the first place that Article 5 was inapplicable in the present case as the applicants had not been deprived of their liberty.They had been received in a CSPA, a centre not designed for detention but to provide first aid and assistance (in terms of health and hygiene in particular) to all the migrants who arrived in Italy in 2011 for the time necessary to identify them, in accordance with the relevant Italian and European rules, and to proceed with their return.The applicants had then been transferred, for their own safety, to the ships Vincent and Audace -which, in the Government's submission, had to be regarded as the "natural extension of the CSPA" of Lampedusa -on account of the arson attack which had destroyed the centre (see paragraph 14 above).59.Faced with a humanitarian and logistical emergency, the Italian authorities had been obliged to seek new premises which, in the Government's view, could not be regarded as places of detention or arrest.The surveillance of the CSPA by the Italian authorities was merely protective, in order to avoid criminal or harmful acts being committed by the migrants or against the local inhabitants.In the Government's view, the need for such surveillance had been shown by the subsequent events, in particular the abovementioned arson attack and the clashes between local people and a group of migrants (see paragraph 26 above).60.In the light of the foregoing, the Government argued, as they had done before the Chamber, that there had been neither "arrest" nor "detention" but merely a "holding" measure.The applicants had been rescued on the high seas and taken to the island of Lampedusa to assist them and to ensure their physical safety.The Government explained that the authorities had been obliged by law to save and identify the applicants, who had been in Italian territorial waters at the time their vessels had been intercepted by the coastguards.Any measure taken against the applicants could not therefore, in their view, be regarded as an arbitrary deprivation of liberty.On the contrary, the measures had been necessary to deal with a situation of humanitarian emergency and to strike a fair balance between the safety of the migrants and that of the local inhabitants.(b) The applicants 61.The applicants acknowledged that, under Italian law, the CSPAs were not detention centres but reception facilities.They argued, however, that this fact did not preclude the finding that, in practice, they had been deprived of their liberty in the Lampedusa CSPA and on the ships Vincent and Audace, in spite of the domestic law classification of the confinement.They observed that, to ascertain whether a person had been deprived of his or her liberty, the starting-point had to be his or her concrete situation and not the legal characterisation of the facility in question.Otherwise States would be able to implement forms of deprivation of liberty without any safeguards simply by classifying the premises in question as a "reception facility" rather than a "detention facility".62.The applicants pointed out that they had been held in a secure facility under the constant watch of the police for periods of nine and twelve days respectively without the possibility of leaving.That situation had been confirmed by the reports of the PACE Ad Hoc Sub-Committee (see paragraph 49 above) and of the Senate's Special Commission (see paragraph 35 above).The Commission had reported prolonged periods of confinement, inability to communicate with the outside world and a lack of freedom of movement. Third-party intervention63.The Centre for Human Rights and Legal Pluralism of McGill University ("the McGill Centre") observed that the facts of the case were similar to those in Abdolkhani and Karimnia v. Turkey (no.30471/08, 22 September 2009), where the Court had dismissed the respondent Government's argument that the applicants had not been detained but accommodated.3. The Court's assessment (a) Principles laid down in the Court's case-law 64.The Court reiterates that, in proclaiming the right to liberty, the first paragraph of Article 5 is concerned with a person's physical liberty and its aim is to ensure that no one should be dispossessed of such liberty in an arbitrary fashion (see Medvedyev and Others v. France [GC], no.3394/03, 73, ECHR 2010).The difference between deprivation of liberty and restrictions on freedom of movement under Article 2 of Protocol No. 4 is 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 (see Guzzardi v. Italy, 6 November 1980, 92-93, Series A no. 39).In order to determine whether a person has been deprived of liberty, the starting-point must be his or her 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 (see Amuur v. France, 25 June 1996, 42, Reports of Judgments and Decisions 1996-III, and Stanev v. Bulgaria [GC], no.36760/06, 115, ECHR 2012).(b) Application of those principles in the present case 65.The Court begins by noting that the Government acknowledged that the Italian authorities had kept the CSPA at Contrada Imbriacola under surveillance (see paragraph 59 above) and did not dispute the applicants' allegation (see paragraph 62 above) that they were prohibited from leaving the centre and the ships Vincent and Audace.66.Moreover, like the Chamber, the Court notes that in paragraph 54 of its report published on 30 September 2011 (see paragraph 49 above), the PACE Ad Hoc Sub-Committee found that "[d]espite the authorities' claim that the Tunisians were not detainees because they were not in cells, ... the conditions to which they were subjected [in the Contrada Imbriacola centre] were similar to detention and deprivation of freedom".It also stated that the migrants were, "[i]n practice, ... imprisoned there without access to a judge" (see 54-55 of the report).67.Similar observations can be found in the report of the Senate's Special Commission (see paragraph 35 above), which referred to the "prolonged confinement", "inability to communicate with the outside world" and "lack of freedom of movement" of the migrants placed in the Lampedusa reception centres.68.Before the Court, the Government did not adduce any material capable of calling into question the findings of those two independent bodies, one of which, the Senate's Special Commission, is an institution of the respondent State.Nor did the Government submit any information to suggest that the applicants were free to leave the Contrada Imbriacola CSPA.On the contrary, the applicants' version seems to be corroborated by the fact -not disputed by the Government -that when on 21 September 2011 they had managed to evade the police surveillance and reach the village of Lampedusa, they were stopped by the police and taken back to the reception centre (see paragraph 14 above).This suggests that the applicants were being held at the CSPA involuntarily (see, mutatis mutandis, Stanev, cited above, 127).69.Similar considerations apply to the ships Vincent and Audace, which, according to the Government themselves, were to be regarded as the "natural extension of the CSPA" (see paragraph 58 above).The Court finds no evidence in the file to suggest that the applicants could have left the ships, not even when they were moored in Palermo harbour.70.The Court notes, lastly, that the duration of the applicants' confinement in the CSPA and on the ships, lasting for about twelve days in the case of the first applicant and about nine days in that of the second and third applicants, was not insignificant.71.In the light of the foregoing, the Court finds that the classification of the applicants' confinement in domestic law cannot alter the nature of the constraining measures imposed on them (see, mutatis mutandis, Abdolkhani and Karimnia, cited above, 126-27).Moreover, the applicability of Article 5 of the Convention cannot be excluded by the fact, relied on by the Government, that the authorities' aim had been to assist the applicants and ensure their safety (see paragraphs 58-59 above).Even measures intended for protection or taken in the interest of the person concerned may be regarded as a deprivation of liberty.The Court observes that Article 5 1 authorises, in its sub-paragraph (d), the "detention of a minor by lawful order for the purpose of educational supervision" (see, for example, Blokhin v. Russia [GC], no.47152/06

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