Italy goes wild against ECHR: “Too favorable to migrants”

: Several press outlets have reported the existence of a draft joint letter between the Italian and Danish governments (but potentially open to signature by other EU countries) to be sent to the European Court of Human Rights ( ECHR ) in which strong concerns are expressed about an approach considered too open by the ECHR towards migrants . The purpose of the letter would be in particular to open a discussion with the Court on the interpretation of the rules in light of the "challenges of modern irregular immigration ". The case law of the Court, in the opinion of the two Governments, would in fact be excessively attentive to guaranteeing the fundamental rights of foreign citizens with the result, even, of hindering EU countries in " making political decisions in our democracies" ( Euractive , 12.05.25). As can be seen, these are rather heavy assessments and tones, and therefore, even if the text of the letter is not currently available, I believe it is appropriate to propose some preliminary reflections.

It should first be remembered that the Court is a jurisdictional body provided for by the European Convention on Human Rights (ECHR) to which all 46 members of the Council of Europe are adherents, created to ensure the application and respect of the rights enshrined in the Convention. As stated in the preamble thereof, the fundamental freedoms protected by the Convention "constitute the very foundations of justice and peace in the world and whose maintenance is essentially based, on the one hand, on an effectively democratic political regime and, on the other, on a common conception and common respect for human rights". The Court began its activity in 1959. Over the course of its decades of activity, it has issued more than 26,000 judgments, of which 2,493 with reference to Italy, while the pending appeals concerning our country, in January 2024, were 2,737 ; this is a rather high number if one considers that the Court can only examine cases for which all domestic remedies have already been exhausted.

The Court's decisions on migration mainly concern the violation of four articles of the Convention: art. 3 (prohibition of torture and inhuman or degrading treatment), article 5 (right to liberty and security), article 8 (right to private and family life) and article 13 (right to an effective remedy). I draw attention to the fact that the prohibition of torture in article 3 can never be derogated in any circumstances, not even " in time of war or other public emergency threatening the life of the nation" ( art.15 ). According to the Court's consolidated case law, the prohibition in article 3 of the Convention must be interpreted as meaning that there is an absolute prohibition on the refoulement or expulsion of a foreigner to a State where he would be exposed to a risk of being subjected to torture or inhuman or degrading treatment.

Among the many decisions in this sense, I recall that of the Grand Chamber, 23.2.2012, Hirsi Jamaa and others v. Italy, as well as the recent judgments MA and ZR v. Cyprus (ECtHR, judgment of 8.10.2024), MI v. Switzerland (ECtHR, judgment of 12.11.2024). Also of particular relevance is the case ARE v. Greece (ECtHR Judgment 7.01.2025) concerning the expulsion to Turkey of a woman of Kurdish origin who was subsequently unjustly imprisoned. The judges recognized, beyond the individual case which was nevertheless serious, that “ taking into account the large number, diversity and concordance of the relevant sources, the Court concludes that it has serious evidence to suggest that, at the time of the alleged facts, there was a systematic practice by the Greek authorities of deportation of third-country nationals from the Evros region to Turkey” (para. 229).

In 2023, the ECHR in its two judgments JA and Others v. Italy and AT and Others v. Italy found serious violations of the rights protected by Articles 3 and 5 of the Convention in the hotspots of Lampedusa and Taranto respectively. In the Lampedusa hotspot case, the Court found at the material time that the applicants' deprivation of liberty was not lawful within the meaning of Article 5(1)(f), as the entire detention, including its duration, was not regulated by law and was therefore to be considered entirely arbitrary. The AT and Others case at the Taranto hotspot involved unaccompanied minors, who were also arbitrarily detained in the same hotspot where they could never have been detained as minors. A case that according to some sources particularly irritated the Danish government is the recent case Sharafane v. Denmark (ECtHR judgment of 12.11.2024) concerning an Iraqi citizen born and living in Denmark for 23 years who was sentenced to two years and ten months of detention for possession of narcotic substances intended for sale.

The Danish Court of Appeal, in confirming the conviction, had also ordered his removal with a ban on re-entry into the State for a period of six years. Called upon to assess whether there had been a violation of Article 8 of the Convention, in continuity with its own jurisprudence, the Court highlighted that in the case of persons who have lived most of their lives in the respondent State or were even born there, the particular gravity of the crimes committed must be assessed, the solidity of social, cultural and family ties both with the host country and with the destination country; any re-entry ban and its duration. In the situation of Mr. Sharafane, according to the ECHR, the Danish domestic authorities had given excessive weight to the gravity of the crime committed by the applicant and, looking at the duration of the re-entry ban from the perspective of balancing the interests of protecting the community and individual rights, noted that the very possibility of returning to Denmark was purely illusory since, due to the domestic legislation on the issuing of visas to persons coming from Iraq and the impossibility of availing oneself of family reunification in the absence of such ties in Denmark, the person would have been effectively prevented from returning forever to Denmark where he was born and lived.

I wanted to briefly present some cases to help even the reader who is not an expert on these topics understand how important the ECHR's work is in protecting fundamental rights and how numerous and serious the violations that are committed in the EU despite the overall democratic system of European states (particularly serious situations such as the Hungarian one, and partly the Polish one, require an ad hoc reflection). The ECHR does not deal in any way with the changing immigration regulations that express the political and social evolution of a community, but rather has the exclusive task of protecting a restricted group of fundamental rights that must be recognized to all human beings as such, beyond their citizenship and legal status. This is that set of rights that in our constitutional system belong " to individuals not as participants in a specific political community, but as human beings " (C. cost. sent. n. 105/2001).

It is essential that the European Court operates in complete autonomy and is not subject to pressure or, even veiled, intimidation by the Member States whose actions, in terms of respect for the fundamental rights of the Convention, it is called upon to examine in thousands of cases, which often concern respect for the fundamental rights of foreign citizens. There is open intolerance on the part of some political parties towards the current legal system for the protection of fundamental rights, so much so that they state in the text of the letter in preparation that "what was once right may not be the answer tomorrow ". European citizens must be aware of this dangerous intolerance and must remember that the recognition of the existence of universal rights to be recognized to all human beings as such is a precious achievement but as recent as it is fragile.

FROM

Gianfranco Schiavone