In Mansouri v. Italy (63386/16, 29.4.2025), a Grand Chamber of the ECtHR declared inadmissible, for non-exhaustion of domestic remedies, several complaints raised by the applicant relating to his confinement on board an Italian cruise ship responsible for returning him to Tunis following a refusal-of-entry order issued by the Italian authorities. The ECtHR thereby also addressed the impact of the Schengen Borders Code (Regulation 2016/399).
The applicant, a Tunisian national, arrived in Italy by cruise ship from Tunis and was refused entry due to lacking a valid visa and having an expired residence permit. He was then confined to a locked cabin on the ship for the seven-day return voyage to Tunis. The Italian authorities justified the action under EU and national law, emphasizing the ship’s duty to return refused entrants and claiming the applicant was housed appropriately under security supervision.
The ECtHR first determined that Italy had exercised jurisdiction under Article 1 of the Convention, thereby engaging its responsibility towards the applicant. It then considered that, even assuming that the applicant’s confinement on board the ship amounted to a deprivation of liberty, his complaints raised under Article 5 §§ 1 and 2 of the Convention and challenging the lawfulness of his confinement were inadmissible, because he had failed to exhaust at least one of two available and effective domestic remedies cited by the Government.
In this connection, the ECtHR added the following obiter:
The Court notes, lastly, that the present case is closely connected to issues that fall within the ambit of EU law and that the circumstances alleged by the applicant formed part of the process of refusing admission to national territory governed by the provisions of the Schengen Borders Code and Annex V thereto … .
In the light of the functioning of the system for policing the external borders of the Schengen Area, the return by the carrier – which is required to take the necessary measures for such return on pain of sanctions – of a third-country national who does not fulfil all the entry conditions forms an integral part of the process of refusing admission to national territory and originates in the refusal-of-entry order … . This being so, the question arises, in particular, whether the refusal-of-entry order constituted the legal basis for the restrictions to which the applicant claimed to have been subjected while being returned, even assuming that these restrictions amounted in substance to a “deprivation of liberty”. However, in the absence of proceedings before them, the Italian courts have not had the opportunity to examine, whether on the basis of arguments put forward by the parties or of the courts’ own motion, any issue as to the interpretation of the provisions of the Schengen Borders Code and Annex V thereto or its compatibility with fundamental rights, while seeking, if appropriate, a preliminary ruling from the CJEU. (§§ 114-115)
This finding calls for the following observations.
(1) As it did already in N.D. and N.T. v. Spain, the ECtHR emphasises of its own motion its competence to review under the Convention the application of the Schengen Borders Code, notably its regulations concerning the refusal of entry to the territories of the EU Member States. While in N.D. and N.T. the issue was the compatibility of these regulations with Articles 3 of the Convention (prohibition of ill-treatment) and 4 of Protocol No 4 (prohibition of collective expulsion) (§ 209), in Mansouri the issue would have been their compatibility with Article 5 of the Convention (right to liberty and security), assuming this provision applied to the facts of the case and had been invoked before the domestic courts (see below). In that case, this issue would indeed have arisen because, as the ECtHR noted, the return by the carrier of a third-country national who does not fulfil all the entry conditions “forms an integral part of the process of refusing admission to national territory and originates in the refusal-of-entry order”. In other words, the conditions of forced return would have had to be examined here under the Convention as another posible consequence of refusal of entry.
(2) In this context, the ECtHR insists on the subsidiarity of the Convention system, which requires that national courts be given “an opportunity to interpret domestic law and prevent or put right Convention violations through their own legal system.” (§ 113) Hence the ECtHR’s strict approach as regards the obligation on applicants to exhaust domestic remedies (Article 35 § 1 of the Convention), the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile not being a valid reason for failing to pursue that avenue of redress (§ 99).
(3) The ECtHR makes it clear that, had the national courts been seized by the applicant, they would have had to examine “any issue as to the interpretation of the provisions of the Schengen Borders Code and Annex V thereto or its compatibility with fundamental rights”. Obviously, the fundamental rights which the ECtHR has in mind can only be those of the Convention, the only ones in respect of which the ECtHR is competent, but this certainly does not rule out the fundamental rights protected under EU law, provided they do not offer a lesser protection.
(4) Interestingly, the ECtHR does not rule out that national courts may have to carry out this examination of their own motion.
(5) At the same time, the ECtHR advises national courts to seek preliminary rulings from the CJEU when necessary, highlighting the need to involve the CJEU in their assessments.
Overall, this ruling, even though not on the merits of the case, contains a useful reminder of the basic principles that should govern the handling of EU law issues by national courts:
- Parties should exhaust available and effective domestic remedies
- The assessment by national courts should cover the issues arising in relation to the interpretation of EU law and its the compatibility with the Convention
- This assessment may have to be done ex officio
- National courts should, where appropriate, consult the CJEU with a request for a preliminary ruling.