Interview. On Tuesday, the European Court of Human Rights declined to issue an emergency decree allowing the migrant rescue vessel Sea Watch 3 to land in Italy, leading the captain to dock ‘illegally.’ But that doesn’t mean Salvini has won.

Human rights court decision ‘can be seen two ways,’ expert says

We interviewed Mauro Palma, National Ombudsman for the rights of detained persons and those deprived of personal liberty, to get his opinion on the recent ruling by the European Court of Human Rights regarding the case of the migrants trapped aboard the Sea Watch 3. In its ruling, the court affirmed—for now—the Italian government’s position blocking the vessel from landing.

How do you interpret the decision by the European Court of Human Rights?

The decision can be seen in two ways. It should be kept in mind that it was only a ruling on whether there was a need for an emergency injunction, under Article 39 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), regarding an urgent situation that must be stopped. In this regard, on the one hand, the Court can be described as very cautious, but on the other hand it was in line with other similar rulings. The ruling says that there is no urgent need to intervene, because Italy has taken steps to let people land in dramatic cases in the past. But then, it also tells the Italian government to continue to do everything possible, because the Court will monitor the evolving situation. This second part, in my opinion, is the most interesting, because it explicitly states that the Italian state is responsible regarding the development of the situation, and thus regarding the people on the ship.

What does that mean?

It means that when the Court finally rules on the merits—because this is only a ruling on an emergency injunction—for example as regards the infringement of Article 3 (the conditions the migrants are in can be described as inhuman and degrading treatment) or Article 5 (people have been deprived of their liberty in an informal manner and without the possibility of appeal), it will start from the fact that Italy bears responsibility. And on that count, it might have a very different opinion from the one expressed [Tuesday]. I think only a part of the question has been addressed.

So, you don’t think the judgment is self-contradictory, as the lawyers of the Sea Watch have called it?

I consider it to be in line with others by the same Court. It does not close the door to possible future decisions which would be of a different nature, when evaluating the merits of the case.

Isn’t it remarkable that the Court is saying it expects a government to take care of these people, but it refrains from ordering it to do so?

In a way, it does order it, albeit implicitly. If we rephrase it, it’s like saying that if this is not done, the Court will change track. It’s clear that this is a procedural ruling. I want to see what the detention of weak persons at sea for 14 days will be categorized as when the Court will examine the merits. Then again, it is true that the ruling could have been more courageous, and the Court could have said “we are intervening right now, at this very moment.” But it is a bit like the Diciotti case, even though that was a wholly Italian affair. When the prosecutors came aboard, people wondered why the criminal activity, if indeed there was such, wasn’t stopped immediately by bringing the people to shore. The prosecutor’s office did not make that determination, but later on they felt that it was justified to start criminal proceedings. It’s possible that the Court is doing something similar. It has not ordered that the migrants should disembark right now, but we’ll see what it will decide when judging the actual situation.

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