Judiciary Procedures

Case Smaltini v. Italy

The UFTDU intervened in the case concerning the deaths caused by the Factory ILVA’s dangerous emissions.

The UFTDU intervened before the European Court of Human Rights as a third party in the case Smaltini v. Italy (appeal n. 43961/09). The appeal was issued by Ms Smaltini (deceased in 2012) and her family in August 2009.

Circumstances of the case: On 12 September 2006 Ms Smaltini was diagnosed with a form of leukaemia and consequently hospitalized. On 13 November 2006 she lodged a complaint with the Taranto public prosecutor’s office, claiming that the air pollution caused by the steelworks factory named “Ilva”, located in the city of Taranto, was the cause of her illness. The public prosecutor decided to dismiss the case and so did the pre-trial judge. Finally, the judge observed that, even in the light of the further investigations carried out, in the circumstances of the case, the causal link between the first applicant’s disease and the pollution produced by the factory could not be shown with a sufficient degree of certainty.

Having exhausted all the Italian levels of judgement Ms Smaltini and her family appealed to the Court of Strasbourg. Under Article 6 § 1 of the Convention, they complained about the fact that, in appointing the experts, the public prosecutor did not follow the procedure foreseen by Article 360 of the Code of Criminal Procedure and that the expert report had been based on statistical data rather than on the first applicant’s health status. They further complained that they were denied a copy of the experts’ report, so being deprived of the possibility to submit it to the medical expert of their choosing in order to challenge its findings. Finally, they complained about a violation Article 2 of the Convention, the causal link between the emissions of the factory and the development of cancer being proven.

The UFTDU, as a third party, emphasised the duty of the Italian State to safeguard its citizens’ right to life, thus its failure to act upon the emissions and protect the victims of ILVA’s pollution is to be perceived as a violation of its obligations.

Slovenia (Kurić and others v. Slovenia)

With an historic judgement issued on the 12th June 2012 by the Grand Chamber of the European Court, the Slovenian government was condemned for the violation of the rights of the citizens of the ex-Yugoslavia whom, since Slovenia’s declaration of independence in 1991, were unlawfully removed (‘erased’) from the country’s register of permanent residents, thus losing any legal status.

After the Chamber held that the issuance of the retroactive residence permits constituted an “adequate” and “sufficient” remedy for the complaints of Mr Petreš and Mr Jovanović under Articles 8, 13 and 14 of the Convention and that those applicants could no longer claim to be the “victims” of the alleged violations, the applicants requested the Grand Chamber to reverse the Chamber’s finding. The latter, on the 13th July 2010, held the Slovenian Government accountable for the removal of the applicants’ private sphere and family life, as they were forced to live for 20 years with great legal uncertainty and lacking moral and material support. Furthermore, the Grand Chamber recognized a violation of Article 8 of the European Convention, which safeguards one’s right to respect for private and family life, and of Article 13, which guarantees the right to an effective remedy, as the Slovenian Government refused to rectify the legal position of the applicants, thus failing to comply with the Constitutional Court’s findings. Moreover, the new law adopted in 2010 to solve the issue resulted inadequate. The Chamber also condemned Slovenia due to the violation of Article 14, as the citizens of the ex-Yugoslavia were discriminated and received a harsher treatment than foreigners that were able to maintain their legal status.

In addition, the Court awarded, on an equitable basis, EUR 20,000 to each successful applicant in respect of non-pecuniary damage and a further EUR 30,000 to the applicants jointly, in respect of costs and expenses.

Justice has been made.

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Case Hirsi and others v. Italy

Issue of refoulement of refugees back to Libya | On the 6th May 2009, 35 nautical miles south of Lampedusa, Italian authorities intercepted three vessel transporting 200 Somali and Eritrean refugees (including pregnant women and children). The migrants were then transferred onto Italian military ships, returned to Tripoli and handed over to the Libyan authorities against their willingness, without identifying or listening to them, and without announcing them their next destination.

The rejection goes against the principle of non-refoulement that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution (Art. 3 ECHR). The rejection also constituted a violation of Article 4 of Protocol 4 of the Convention, which forbids collective expulsion of foreigners and of Article 13 which guarantees the right to an effective remedy. Amongst those intercepted there could have in fact been asylum seekers, whom were denied demanding for protection in Italy.

Furthermore, in Libya migrants risk being mistreated in detention centres and being sent back to their home countries without the possibility of appealing to the refugee status as declared by the 1951 Ginevra Convention, as Libya is not a signatory.

In its defence, the Italian Government stated that Libya was in fact a safe destination and that the migrants did not manifest their willingness to seek asylum or demand international protection.

The migrants were represented by UFTDU’s President Anton Giulio Lana and lawyer Andrea Saccucci.

The case sparked interest and mobilised many international organization such as the United Nations Refugee Agency (UNHCR) and the UN Human Rights Office of the High Commissioner (UNOHCHR) as well as other non-governmental organizations.

The Court’s Ruling | The Court condemned Italy for the violation of three fundamental principles: the prohibition of torture, and inhuman or degrading treatment or punishment (Article 3 EHCR), the lack of an effective remedy (Article 13 EHCR) and the ban on collective expulsions (Article 4, Protocol IV EHCR). The Court for the first time equated collective refoulement operations at the border and in the high seas and collective expulsion of those that are already in the country.

The Court emphasised that the rights of African migrants on the route to Europe are systematically violated in Libya. Furthermore, the latter country did not offer adequate protection in preventing the migrants from returning to their countries of origin where they can be persecuted, or even killed.

The UFTDU, the Italian Refugee Council (CIR) and the European Council on Refugees and Exiles (ECRE) were very pleased by the Court’s judgement.

Background notes | The standards of life of the migrants rejected on the 6th of May 2009 in Libya were dramatic. The majority was held in detention camps where they suffered abuses and violence. The majority of the applicants was recognised by the UNHCR and obtained a refugee status in Libya.

After conflict sparked in Libya, the applicants that were still in Tripoli became victim of the reprisal attacks carried out by both the military and the insurgents, and were forced into hiding for long time periods with no access to food and water.

After the NATO bombings, some applicants escaped to Tunisia, whilst other reattempted to reach Europe. One left for Malta and was granted protection, two others died whilst trying to reach Italy on a makeshift vessel. Another left for Israel, and one returned to Ethiopia. E., one of the applicants, once again travelled to Italy and this time was granted asylum by the territorial commission.

Based on testimonies, it is likely for other applicants to have lost their life in the high seas as, according to the UNHCR, approximately 1,500 migrants died attempting to reach Italy in 2011.

The Court also held unanimously that Italy was to pay the applicants, EUR 15,000 each in respect of non-pecuniary damage, and EUR 1,575.74 in total, in respect of costs and expenses.

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